Gay Travel Advisory

Botswana

Penal Code [Chapter 08:01], 1964 (amended by the Penal Code Amendment Act 14, 2005).

Sources
  1. Text of the law is available at: http://www.wipo.int/wipolex/en/details.jsp?id=10486
  2. See Scott Long, “Before the law: Criminalizing sexual conduct in colonial and post-colonial southern African societies”, in More than a name: State-Sponsored Homophobia and Its Consequences in Southern Africa (New York: Human Rights Watch & International Gay and Lesbian Human Rights Commission, 2003), available at www.hrw.org/en/reports/2003/05/13/more-name-0 at 272-274

Legal Code Text

Section 164. Unnatural offences “Any person who; (a) has carnal knowledge of any person against the order of nature; (b) has carnal knowledge of any animal; or (c) permits any other person to have carnal knowledge of him or her against the order of nature, is guilty of an offences and is liable to imprisonment for a term not exceeding seven years.”

Section 165. Attempts to commit unnatural offences “Any person who attempts to commit any of the offences specified in section 164 is guilty of an offence and is liable to imprisonment for a term not exceeding five years.”

Section 167. Indecent practices between persons “Any person who, whether in public or private, commits any act of gross indecency with another person, or procures another person to commit any act of gross indecency with him or her, or attempts to procure the commission of any such act by any person with himself or herself or with another person, whether in public or private, is guilty of an offence.”

ILGA Analysis & Notes

A case about the right of a SOGI-based organisation, LeGaBiBo, to register as a NGO dates back to 2012, with a decisive win in late-2014 where the High Court said not allowing it to register would be an unconstitutional violation of the applicants’ right to freedom of expression, freedom of association and free assembly. The State then appealed the decision on the grounds that its recognition would erode public morality, and that appeal was heard in mid-January 2016. In midMarch 2016, judgment from that appeal was unsuccessful and that NGO is now registered, thereby providing an example of positive jurisprudence regarding the reach of the State. In both of its UPR sessions to date (December 2008, January 2013) Botswana refused all recommendations for decriminalisation and non-discrimination based on SOGI (7 recommendations in 2008, and 8 in 2013). In its response to recommendations the delegation for Botswana said (at para. 92) that other than including sexual orientation in the amended Employment Act of 2010, “[r]egarding cultural sensitivities that have a bearing on existing legislation, the delegation confrmed Botswana’s commitment to comply with its treaty obligations” and “determined to undertake educational awareness campaigns…”. Despite a CCPR recommendation (at para. 22) that Botswana should amend Section 164, and the Kanane case of 2003 that found the provisions at Sections 164 and 167 discriminatory, the law has remained in place. It is notable that Botswana’s ambassador to the UN led the second wave of opposition to the establishment of the SOGI Independent Expert to the UN in November 2016, saying “[n]o nation or group of nations should pretend to hold a monopoly over cultural norms and therefore seek to impose those values on others”