Botswana latest sub-Saharan Africa country to decriminalize gay sex

Botswana has become the latest country to decriminalize gay sex, when the High Court on Tuesday rejected as unconstitutional some sections of the penal code that punish same-sex relations with up to seven years in prison.

Activists in the packed courtroom cheered the unanimous decision in the southern African nation that is seen as one of the continent's most stable and democratic. The ruling came less than a month after Kenya's High Court had upheld similar sections of its own penal code in another closely watched case.

More than two dozen countries in sub-Saharan Africa have laws criminalizing gay sex. Earlier this year, the southern African nation of Angola also decriminalized same-sex activity and banned discrimination based on sexual orientation.

Those arguing against the laws criminalizing gay sex say they leave people in the LGBT community vulnerable to discrimination and abuse while making it difficult to access basic health and other services.

The Botswana-based non-governmental group LEGABIBO, which supported the anonymous petitioner in the case challenging the sections of the penal code, has said such laws "infringe on basic human dignity."

People in the courtroom were ecstatic, leaping up, clapping and ululating, LEGABIBO legal policy director Caine Youngman told The Associated Press. When the judges said the right to privacy includes the right to choose a partner, "it hit home," he said.

"I'm a gay man. I've been out for many years. Now I can live with my partner without worry," Youngman said. He said the state might appeal "to appease the homophobes" and has 30 working days to do so.

The ruling led to rejoicing from rights groups that had expressed frustration with the Kenyan decision last month, including ones in countries such as Nigeria, Uganda and Ghana, where gay sex remains illegal. Amnesty International called on other African nations to follow Botswana's example in "an exciting new era of acceptance."

'Deserve to have their rights protected'

Botswana's High Court said in its ruling that penalizing people for who they are is disrespectful, and the law should not deal with private acts between consenting adults.

The right to privacy includes sexual orientation, which is innate and not a fashion statement, the judges said.

The ruling also cited the recent decriminalization in India and elsewhere. It also pointed out all three arms of Botswana's government have expressed the need to protect the rights of the gay community.

Before the ruling, LEGABIBO shared a comment attributed to President Mokgweetsi Masisi: "There are also many people of same-sex relationships in this country who have been violated and have also suffered in silence for fear of being discriminated. Just like other citizens, they deserve to have their rights protected."

The judges cited the president's comment in their ruling.

The UN Human Rights Office of the High Commissioner, which said Botswana is the ninth country in the last five years to have decriminalized consensual same-sex relationships, welcomed the decision. 

"This is a landmark decision that should free lesbian, gay, bisexual and transgender (LGBT) people in Botswana from the range of discriminatory sanctions and practices arising from these highly problematic provisions in the Penal Code," High Commissioner Michelle Bachelet said in a statement.