High Court of Botswana Ruling That Strikes down Sections 164(a) and (c) and section 167 of the penal code

Today, on 11 June 2019, a full bench of the High Court of Botswana ruled to shake remaining relics of its colonial past and to strike down section 164(a) and (c), and section 167 of the penal code which criminalize same-sex relations, or “carnal knowledge against the order of nature”.

Introduction

  1. Topical and trending within this constitutional discourse is the interface between law and moral values. Law, it is trite, is a panoply and assemblage of signs, signals, prescripts and protocols that regulate human behaviour and activity. Moral values are standards of what is good, tolerable, bad or evil, which govern an individual or societal behaviour and choices, as may be influenced by different sources and perspectives, be they intrinsic or extrinsic. Juxtaposed together, law, therefore, ought to be a reflection of society’s moral values.

  2. Moral relativism informs us that what is morally good or bad to one person, within the realm of sexual orientation, choice and preference, may not necessarily be so to another person, hence a happy and shining reflection of our plurality, diversity, inclusivity and tolerance to both majority and minority rights.

  3. Sections 164 (a) and (c) and 165 of the Penal Code proscribe and criminalize sexual intercourse and/or attempt thereof between persons of the same sex and/or gender. Section 167 proscribes both public and private gross indecency. What regulatory joy and solace are derived by the law, when it prescribes and criminalizes such conduct of two consenting adults, expressing and professing love to each other, within their secluded sphere, bedroom, confines and/or precinct? Is this not a question of over-regulation of human conduct and expression, which has a tendency and effect of impairing and infringing upon constitutionally ordained, promised and entrenched fundamental human rights?

Read the full ruling