A high court in Botswana has kicked out two colonial-era laws and effectively legalised homosexual relationships ruling that the laws were discriminatory, unconstitutional and against the public interest.
The ruling makes Botswana the first country in Africa to decriminalise homosexuality through the courts.
Mr. Justice Michael Leburu read out the ruling in front of a packed court saying that the right to privacy includes sexual orientation, which “is not a fashion statement.”
“It is not the business of the law to regulate the private behaviour of two consenting adults,” he said.
The judge also said in his statement that a prohibitive legal environment around homosexuality increased the vulnerability of people in the LGBT community to HIV because they were less likely to have access to health facilities.
Colonial Laws Struck Down
The old laws, which originated from when Botswana was a British colony, carried the possibility of seven years in prison but was seldom enforced.
The case against the penal code was brought by an anonymous gay man, who was supported by the Botswana based non-governmental group LEGAIBO, which has tirelessly campaigned for homosexuality to be legalised.
The UNAIDS executive director Gunilla Carlsson said in a statement after the ruling, “it is a day to celebrate pride, compassion, and love.”
Earlier this year, Angola, situated north of Botswana also decriminalised homosexuality, but South Africa is the only African country to have rights based on sexual orientation written explicitly into its constitution.
Overall in Africa attitudes towards homosexuality remain largely intolerant and discrimination and harassment are rife.
In May a court in Kenya heard a similar case but dismissed it, while Mozambique has similarly erased homosexuality from the penal code when it was carrying out constitutional reform.
Botswana is one of Africa’s most stable democracies. President Mokgweetsi Masisi has publicly expressed his support for the gay community. “Just like other citizens, they deserve to have their rights protected,” he said.