The judgement of the Botswana High Court in LM V The Attorney General, which legalised same-sex sex relations, is important for gay couples across Africa. The judgement demonstrates that laws, such as Section 164(a), (c), 165 and 167 of the Penal Code, which proscribe and criminalize the conduct of consenting adults in expressing and professing love to each other, within the private sphere, are unconstitutional. Any limitation placed upon the enjoyment of such rights needs to be justified under the rule of law, which recognizes and protects both the majority and minority interest and rights.
The High Court of Botswana held that the impugned Sections – 164(a), 164(c), and 165 of the Penal Code – had been found to proscribe and prohibit gay men from “exercising, enjoying and engaging in sexual intercourse with a man per anum”, which for homosexual men is the “only mode of sexual intercourse” [para 26]. It observed that after the United Kingdom Parliament reformed the law of England and Wales via the Sexual Offences Act 1967, Angola, South Africa and Mozambique also decriminalised the offence of sodomy [para 57].
Such actions resulted from the “inherent recognition of such law as being discriminatory, invasive of personal dignity, privacy, autonomy and liberty”. Furthermore, the Court’s observation that “the absence of compelling public interest to intrude and regulate private sexual expression and intimacy between consenting adults” [at 58] suggested that it is not the role of the court to say that the public mood should determine court decisions.
The court observed that when “interpreting legislation or Acts of Parliament, the foundational premise is that all laws serve the public good or public interest” [at 74]. This is important because in countries like Kenya, laws criminalizing same-sex relations are supported by 99% of the Kenyan public; however, the Botswana judgement affirms that what is important is an approach that is independent of public opinion.
The Court also noted that the right to privacy is entrenched in Section 3(c) and Section 9 of the Botswana constitution. The United Nations Declaration of Human Rights, 1948 (also see, The International Covenant on Civil and Political Rights 1966 – Article 17), at Article 12) postulates that:
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference of attacks.”
Consequently, according to the Court, the impugned Penal Code provisions “impair the applicant’s rights to express his sexuality in private, with his preferred partner” [at 127]. This means that homosexual men in Botswana have “a right to a sphere of private intimacy and autonomy, which is consensual. There is no complaint/victim in that regard” [at 127].
On the issues of liberty, equality and dignity, the court found that any “criminalization of love or finding fulfilment in love dilutes compassion and tolerance.” [at 141]. This is important because, effectively, the Court held that the invocation of culture cannot be an excuse to violate constitutional rights. Tolerance, care, compassion, diversity and plurality are important in realising universal human rights. The right to liberty “protects inherently private choices, free from undue influence, irrational and unjustified interference by others” [at 141]. Therefore, the Court held that the impugned sections placed unconstitutional burdens on gay couples in Botswana.
In relation to Section 167, the court held that “the question of private morality and decency between consenting adults should not be the concern of the law” [at 217]. Under “the doctrine of severability, the role of the court is to review and interpret the provisions in order to determine their validity”; put simply, the law has no business “to regulate private consensual sexual encounters between adults” and this also “applies to issues of private decency and/or indecency between consenting adults” [at 223].
Hopefully, this judgement will lay the foundation across Africa for judicial recognition of the fact that human rights are important and protect individuals from cultural constraints, public opinion and unjust laws.