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Botswana to appeal against ruling decriminalising gay sex

Nick Duffy July 6, 2019
Activists pose with a rainbow flag as they celebrate outside Botswana High Court in Gaborone on June 11, 2019.

Activists pose with a rainbow flag as they celebrate outside Botswana High Court in Gaborone on June 11, 2019. (TSHEKISO TEBALO/AFP/Getty)

The Botswana government is planning to appeal against a court ruling that decriminalised gay sex in the country.

In a landmark decision in June, Botswana’s High Court struck down Section 164 of  the Botswana penal code, which punished anal and oral sex between men with up to seven years in prison.

The ruling effectively decriminalised gay sex in the country, but the decision will now face a fresh legal challenge.

Botswana Attorney General launches appeal against gay sex ruling

Attorney General Abraham M. Keetshabe said on Friday (July 5) that he would launch an appeal against the High Court ruling, seeking to re-establish the archaic colonial-era law.

Keetshabe said: “I have thoroughly read the judgment and I am of the view that the High Court erred in arriving at this conclusion and thus, I have decided to note an appeal with the Court of Appeal.”

An activist poses for the camera outside Botswana High Court in Gaborone on June 11, 2019 after a ruling decriminalising homosexuality
An activist poses for the camera outside Botswana High Court in Gaborone on June 11, 2019 after a ruling decriminalising homosexuality (Tshekiso Tebalo/AFP/Getty)

If successful in his appeal, the case could lead to the law criminalising gay sex being put back into place.

In the original unanimous judgment, the High Court judges had held that “any discrimination against a member of society is discrimination against all.”

Judge: Criminalising gay sex is not in the public interest

Justice Michael Leburu had said: “A democratic nation is one that embraces tolerance, diversity, and open mindedness… societal inclusion is central to ending poverty and fostering shared prosperity.”

Leburu added that is is “not in the public interest” to criminalise same-sex sexual conduct.

“What compelling public interest is there necessitating such a law?” he said. “Human dignity is harmed when minority groups are marginalised.”

The original case had been brought by Letsweletse Motshidiemang, a 24-year-old English Literature student at the University of Botswana.

Motshidiemang, who received legal support from a law professor, told the Tswana Times:  “Being a homosexual is not something new in my life, it is something, that I have learnt to live with growing up since the age of ten.”

He added: “I am in a sexually intimate relationship with a man.

“By virtue of one or more of these provisions of the law, I am prohibited from expressing the greatest emotion of love through the act of enjoying sexual intercourse with another consenting adult male that I am sexually attracted to and who is also sexually attracted to me, as consenting adults.”

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