“It is not the business of the law to regulate the private behavior of two consenting adults,” Leburu said.
The case against the laws was brought by an anonymous gay man, identified only by the initials L.M.
“We are not looking for people to agree with homosexuality but to be tolerant,” he wrote in his deposition.
Gay sex is criminalized in more than half of Africa’s countries, many of which inherited penal codes from colonial powers such as Britain. The subject is widely seen as taboo, and discrimination and harassment are rife.
Last month, a Kenyan high court heard a similar case but dismissed it. Other countries such as Mozambique and Seychelles have simply erased mention of gay sex from their penal codes during the rewriting process that has accompanied constitutional reform. Botswana’s powerful neighbor, South Africa, is the only African country to have rights based on sexual orientation explicitly written into its constitution.
Courts in other former British colonies outside Africa have made decisions similar to that of Botswana. Leburu cited India’s ruling in 2018 as one precedent on which his own decision was built.
“It has taken a long time for our community to be where it is,” said Anna Mmolai-Chalmers, the head of Lesbians, Gays and Bisexuals of Botswana, or LEGABIBO, the most prominent of Botswana’s LGBT rights organizations. “This incredibly life-changing decision, although it does not right all the wrongs done to individual members of the LGBT community, is a step toward restoring our dignity as human beings.”
Botswana, which is sparsely populated and home to just over 2 million people, is one of Africa’s most stable democracies. The country in October is scheduled to hold elections, which are already being hotly contested. The rights of lesbian, gay, bisexual and transgender people have not figured centrally in the campaign, but President Mokgweetsi Masisi has expressed his support for the community.
“Just like other citizens, they deserve to have their rights protected,” the president said at a December gathering.
The ruling in Botswana could provide precedent for other former British colonies to strike down similar clauses in their penal codes. The language of the ruling was unusually strong and unequivocal.
“What regulatory joy and solace is derived by the law, when it proscribes and criminalizes such conduct of two consenting adults, expressing and professing love to each other, within their secluded sphere, bedroom, confines and/or precinct?” wrote Leburu. “Any criminalization of love or finding fulfillment in love dilutes compassion and tolerance.”