Botswana LGBT Laws

Censorship, Freedom of Association, Freedom of Expression, Free Speech, Right of Assembly Legislation/Cases/References
1. Courts & Tribunals

On 16 March 2016, the Court of Appeals, upheld 5-0 a 2014 lower court judgment that the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) should be allowed to register and campaign for changes in anti-gay legislation [C1.5], [R1.4].

On 19 January 2015, it was reported that court records showed that government was appealing the high court case which gave Lesbians, Gays and Bisexuals of Botswana (Legabido) the right to register as an organisation [R1.3].

On 14 November 2014, Justice Terrence Rannoane in the High Court ruled that government had acted unconstitutionally when they blocked the group, Legabibo (Lesbians, Gays, and Bisexuals of Botswana), from registering. The Court emphasised the importance of the rights to freedom of expression, association and assembly in a democracy [C1.2], [R1.1].

C1.5 Judgment: Attorney General v Thuto Rammoge, et al. CACGB-128-14 PDF 3.07MB 16 MAR 16
R1.4 ReutersUK: Botswana’s top court rejects government bid to ban gay rights group 16 MAR 16
R1.3 iolNews: Botswana to appeal gay rights group ruling 19 JAN 15
C1.2 Judgment: Thuto Rammoge, et al. v. Attorney General MAHB-000175-13 PDF 13.61MB, 14 NOV 14
R1.1 GayStarNews: Historic ruling in Botswana: Gay sex is illegal but gay rights group must be allowed 14 NOV 14
Gender Identity, Intersex,
Transgender, Transexual
1. Courts & Tribunals

On 12 December 2017, Justice Leatile Dambe in the High Court ordered the director of the National Registration to issue Tshepo Ricki Kgositau with a new Identity Card identifying her as a female within seven days [R1.2].

On 29 September 2017, Justice Nthomiwa in the Lobatse High Court reportedly ruled that a transgender man’s gender marker on his identity document be changed from female to male finding that the refusal to change the applicant’s gender marker was unreasonable and violated his rights to dignity, privacy, freedom of expression, equal protection of the law, freedom from discrimination and freedom from inhumane and degrading treatment [R1.1]

R1.2 Reuters: Botswana court orders govt to recognise transgender woman as female 13 DEX 17
R1.1 Groundbreaking transgender judgment in Botswana 29 SEP 17
Homosexuality, Sodomy Legislation/Cases/References
1. National

The Botswana Penal Code proscribes against unnatural sexual liaisons between males [R1.1].

Chapter 08:01 of the Penal Code 13 provides –

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.” [R1.1].

2. Courts & Tribunals

On 14 March 2019, Judge Abednico Tafa in the High Court reportedly said a ruling in the case challenging the criminalisation of gay sex would be handed down on 11 June [R2.4].

On 07 December 2018, the High Court has set 15 March 2019 as the date for the highly anticipated hearing on the decriminalization of homosexuality. The court blamed logistical reasons for the delay in setting a hearing date [R2.3].

In February 2011, Caine Youngman, aged 29, and a member of an unregistered gay society called the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) made an application to the Court challenging the legality of Section 164 of the Penal Code that criminalizes same sex relationships [R2.2].

In May 2001, Utjijwa Kanani challenged the Penal Code provisions as being unconstitutional asserting the legislation discriminates against him by virtue of his gender and that it inhibits his freedom of association [R2.1].

The hearing was to have taken place on 31 May 2001 however no report of the outcome has been noted.

R1.1 ILGA: State-Sponsored Homophobia PDF 3.3MB, 15 MAY 13
R2.4 euroNEWS: Botswana’s High Court postpones decision in gay sex case 14 MAR 19
R2.3 GayStarNews: Botswana High Court finally sets date for homosexuality decriminalization case 07 DEC 18
R2.2 The Southern Times: Botswana gays go to court 28 FEB 11
R2.1 Panafrican News Agency: Alleged Gay Challenges Homosexual Laws 03 MAY 01