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In Landmark Ruling, Botswana Strikes Down Colonial-Era Law Criminalizing Homosexuality

‘A democratic society is one that embraces tolerance, diversity and open-mindedness,’ Justice Michael Leburu said of the ruling

An activist holds up a rainbow flag inside Botswana's High Court to celebrate Tuesday's landmark ruling. (TSHEKISO TEBALO/AFP/Getty Images)
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Botswana’s High Court in Gaborone voted unanimously on Tuesday to overturn colonial-era laws criminalizing homosexuality, a landmark ruling that is being hailed as a victory by LGBTQ activists in Africa.

According to CNN’s Kara Fox, the verdict stemmed from a case brought by Letsweletse Motshidiemang, a 21-year-old student at the University of Botswana, who argued that laws prohibiting homosexuality violated his constitutional rights. Ultimately, the judges of the high court agreed.

“What compelling public interest is there necessitating such a law? There is no victim,” said Justice Michael Leburu, according to Christian Science Monitor's Ryan Lenora Brown, who was at the courthouse, as Carl Collison of the Mail & Guardian reports.

Leburu also maintained that “[a] democratic society is one that embraces tolerance, diversity and open-mindedness,” and that the now-defunct laws were detrimental to the nation as a whole.

“Societal inclusion is central to ending poverty and fostering shared prosperity,” Leburu said.

Botswana’s penal code had previously defined homosexuality as “carnal knowledge of any person against the order of nature,” and made it punishable by a maximum sentence of seven years imprisonment. Kimon de Greef of the New York Times reports the country first outlawed homosexuality in the late 1800s, when it was under British rule. "From 1860 onwards, the [British Empire] spread a specific set of legal codes and common law throughout its colonies, among them laws proscribing male-to-male sexual relations," according to the Conversation.

Britain’s own anti-homosexuality laws date back to the 16th century. In 1861, British Victorians drafted Section 377 of the Indian Penal Code, which made homosexuality a punishable crime and was “a model law in more ways than one,” according to a 2008 Human Rights Watch report.

“It was a colonial attempt to set standards of behavior, both to reform the colonized and to protect the colonizers against moral lapses,” the report continues. “Its influence stretched across Asia, the Pacific islands, and Africa, almost everywhere the British imperial flag flew.”

The United Kingdom began decriminalizing homosexuality in the 1960s, and some of its former colonies—among them Australia, South Africa and Belize—have struck down their own anti-sodomy laws. India overturned Section 377 last year. But LGBTQ policy around the world remains impacted by the British Empire's legacy of criminalizing homosexuality. As de Greef reports, “Of the more than 70 countries globally that criminalize homosexuality, more than half were once under British dominion.”

Just last month, Kenya’s high court voted to uphold a colonial-era law banning same-sex relationships. And across Africa, LGBTQ groups have struggled to gain acceptance. More than 30 African countries have laws prohibiting homosexual relations and in some nations, including Sudan and parts of Somalia and Nigeria, homosexuality is punishable by death. A 2013 Pew survey found “widespread rejection” of homosexuality on the continent.

Against this backdrop of discrimination, the recent ruling in Botswana has been praised by LGBTQ activists, who say that the judgement can help improve the community’s access to vital health and legal services.

“This judgement can make a massive change for our lives,” Anna Mmolai-Chalmers, coordinator of the Botswana-based LGBTQ rights group Legabibo, tells CNN’s Fox. “The court has upheld our dignity, our privacy, and our liberty... It means freedom.”

About Brigit Katz

Brigit Katz is a freelance writer based in Toronto. Her work has appeared in a number of publications, including NYmag.com, Flavorwire and Tina Brown Media's Women in the World.

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