In 2016, Letsweletse Motshidiemang went to court to demand rights other Botswanans took for granted. As a gay man, he challenged so-called sodomy laws, arguing they violated his constitutional rights. A decade on, his struggle has been won. The government has changed the penal code to remove ‘unnatural offences’ clauses that criminalised consensual same-sex relations, bringing the law into line with constitutional rulings issued in 2019 and 2021. A decade of advocacy, litigation and determined resistance has paid off, securing a victory for equality and human rights.

Moving away from a colonial legacy

Botswana’s penal code was imposed by British colonial authorities and, like many former British colonies in Africa, the country retained its criminalising provisions on independence in 1966. Sections 164(a) and 164(c) criminalised ‘carnal knowledge against the order of nature’ with up to seven years in prison. Prosecutions under these provisions were rare, but their presence on the books had important consequences. They perpetuated stigma, legitimised discrimination and harassment, enabled violence and obstructed LGBTQI+ people’s access to healthcare and other vital services.

While several other African countries have recently reinforced or strengthened anti-LGBTQI+ laws, Botswana has been moving, however haltingly, in the opposite direction. Employment discrimination on the basis of sexual orientation was prohibited in 2010, making Botswana one of very few African countries to extend such protections. In 2017, the High Court ruled that transgender people have a constitutional right to amend their legal gender marker. And in March 2016, the city council of Gaborone, Botswana’s capital, unanimously passed a motion calling for the repeal of criminalisation.

The long road to decriminalisation

The legal challenge that ultimately led to decriminalisation began in September 2016, when Motshidiemang filed a constitutional application challenging sections 164(a), 164(c) and related provisions of the penal code. He argued that the criminalisation of his identity was incompatible with his constitutional rights to liberty, dignity and freedom from discrimination. Lesbians, Gays and Bisexuals of Botswana (LEGABIBO), the country’s leading LGBTQI+ civil society organisation, joined the case as a friend of the court in November 2017. The Southern Africa Litigation Centre supported the case throughout.

LEGABIBO’s history illustrates the structural obstacles Botswana’s LGBTQI+ civil society has had to overcome. The government twice refused to register the organisation, arguing that its purposes were likely to be ‘prejudicial to peace, welfare or good order’. LEGABIBO challenged these refusals in court, winning recognition from the High Court in November 2014. The government appealed, but in March 2016, the Court of Appeal unanimously upheld LEGABIBO’s right to register, finding that the government had unlawfully denied it the freedom to organise, operate and represent its members.

The group has since established its main office in Gaborone and opened drop-in centres in several cities across Botswana. Its educational and awareness-raising campaigns, safe spaces, support services and advocacy for legal reform built the foundation to challenge criminalisation.

After several procedural adjournments, the High Court heard the decriminalisation case in 2018, and in June 2019, it delivered a unanimous ruling finding that criminalisation violated the constitutional rights of LGBTQI+ people to dignity, liberty, privacy and equal protection of the law. Celebrations were short-lived, because the government quickly filed an appeal. With little elaboration, the Attorney General argued that the court had made a mistake because there was no evidence people’s attitudes towards homosexuality had changed.

In November 2021, the Court of Appeal unanimously rejected the government’s case, arguing that the criminalising provisions ‘serve only to incentivise law enforcement agents to become key-hole peepers and intruders into the private space of citizens’. The court held that Botswana’s constitution must be construed to protect the dignity, liberty and equality of every person, regardless of sexual orientation. The ruling placed Botswana in rare company: South Africa’s Constitutional Court is the only other top court in Africa that’s delivered such a judgment, in 1998.

The invalidated provisions, however, remained on the books for a further four-plus years until the government finally removed them in March. LEGABIBO welcomed the change, noting that the criminalising clauses had continued to fuel discrimination and fear, with tangible effects on LGBTQI+ people’s safety and their access to employment and healthcare.

Resistance to change

The continental context makes Botswana’s progress all the more striking. Currently 31 out of 54 African states criminalise same-sex relations, many with severe penalties, including jail sentences of up to 14 years in Kenya, possible life imprisonment in Sierra Leone and Tanzania and potential death sentences in Uganda and northern Nigeria. As Botswana took its step forward in March, Senegal doubled its maximum jail term for same-sex relations to 10 years and introduced new criminal penalties for what it calls the ‘promotion of homosexuality’. Botswana stands as one of the most progressive African countries on LGBTQI+ rights, alongside Cabo Verde, Namibia, Seychelles and South Africa.

Still, Botswana’s path from court victory to statutory revision wasn’t easy. The 2021 Court of Appeal decision triggered a backlash, with conservative religious and traditional groups mobilising against decriminalisation. Organisations such as the Botswana House of Prayer and the Evangelical Fellowship of Botswana mobilised their followers, gathering hundreds for street marches in Gaborone. Protesters carried banners rejecting same-sex relationships and petitioned parliament to oppose changes to the law. Religious groups pressured lawmakers to hold a national referendum to overturn the judiciary’s decisions and formally applied to join subsequent court cases, including those on same-sex marriage, making arguments opposing any expansion of the recognition of LGBTQI+ rights.

Calls for retaining the criminalising provisions framed LGBTQI+ rights as culturally alien and incompatible with national values. This is an argument consistently used by foreign-funded anti-rights networks across Africa, inverting the historical truth that it was criminalisation that was imported through colonial imposition.

The road ahead

The formal repeal of the criminalising provisions is a significant milestone, but it’s not the end of the road. Campaigners are urging comprehensive protections against discrimination in housing and public services, marriage equality, adoption rights, protections against hate crimes and a ban on so-called conversion therapy, a practice United Nations human rights experts consider akin to torture.

The most immediate legal frontier is marriage equality. In March, a same-sex couple filed a constitutional challenge to Botswana’s Marriage Act, which denies same-sex couples the right to marry. The case is scheduled for a High Court hearing in July. The legal arguments mirror those that succeeded in the decriminalisation case: if the constitution protects the dignity, liberty and equality of LGBTQI+ people, it must also protect their relationships. If the High Court rules in favour, Botswana will become only the second African country, after South Africa, to recognise same-sex marriage.

However, in an environment where conservative religious institutions maintain significant influence, legal victories are only the first step. For rights to move from the courtroom to everyday life, activists must still confront deep-rooted discrimination, stigma and violence. By pairing strategic litigation with grassroots community engagement, LEGABIBO has created a blueprint for this ongoing struggle. Botswana’s journey shows that even in a global climate of conservative backlash, strategic and persistent advocacy can achieve change.

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