'Court Rulings Matter, but It's Sustained Civic Action That Turns Them Into Real Protection'

Botswana has formally decriminalised same-sex relations, culminating a decade of sustained civic action and landmark court rulings. The journey began with the High Court's unanimous decision in 2019 in *Letsweletse Motshidiemang v The Attorney General*, which found sections of the Penal Code criminalising same-sex acts unconstitutional, violating rights to dignity, liberty, privacy, and equal protection. This ruling was upheld by the Court of Appeal in 2021, rejecting the government's appeal. While these judicial victories were pivotal, the formal removal of the colonial-era provisions from the Penal Code in March 2026 underscores the critical role of persistent advocacy by civil society organisations like Lesbians, Gays and Bisexuals of Botswana (LEGABIBO). This development positions Botswana as a progressive outlier in Africa, yet highlights the ongoing need for civic engagement to translate legal victories into societal protection and equality.

Botswana has recently cemented its position as a beacon of human rights in Africa by formally removing colonial-era provisions that criminalised same-sex relations from its Penal Code. This legislative update in March 2026 followed a series of landmark judicial pronouncements that began with the High Court's decision in 2019, subsequently affirmed by the Court of Appeal in 2021. The decriminalisation marks a significant victory for LGBTQI+ rights, setting Botswana apart from many other African nations where such laws persist or have even been strengthened.

This development is not merely a testament to judicial activism but profoundly illustrates the indispensable synergy between progressive court rulings and sustained civic action. While the courts provided the necessary legal framework by declaring the impugned sections unconstitutional, it was the relentless advocacy, public awareness campaigns, and strategic litigation efforts by civil society organisations that ensured these judgments were not just symbolic but translated into tangible legal and social reforms. The journey underscores a crucial lesson for legal professionals and human rights defenders: court rulings, however transformative, often require persistent civic engagement to achieve real and lasting protection for marginalised communities.

This article will delve into the legal landscape that led to decriminalisation, examining the key judicial decisions, the statutory provisions challenged, and the constitutional principles invoked. It will further analyse the pivotal role of civil society in driving this change and consider the implications for legal practitioners and the broader human rights discourse in Botswana and across the continent.

Prior to these landmark decisions, Botswana's legal framework, inherited from its British colonial past, criminalised same-sex sexual acts. Specifically, Sections 164(a), 164(c), and 165 of the Penal Code (Cap 08:01, Laws of Botswana) outlawed "carnal knowledge of any person against the order of nature" and attempts to commit such offences, carrying potential imprisonment sentences of up to seven years. Section 167 further criminalised acts of "gross indecency" in public or private. These provisions, while rarely enforced, perpetuated stigma, legitimised discrimination, and hindered LGBTQI+ individuals' access to essential services.

An earlier attempt to challenge these laws in *Kanane v The State* in 2003 was unsuccessful, with the Court of Appeal then holding that the time had not yet arrived to decriminalise homosexual practices and that the Constitution's non-discrimination provisions did not extend to sexual orientation. This precedent highlighted the judicial reluctance to interpret constitutional rights expansively without perceived societal readiness. However, the landscape began to shift with the persistent efforts of organisations like Lesbians, Gays and Bisexuals of Botswana (LEGABIBO), which itself faced a protracted legal battle for registration, ultimately winning recognition from the High Court in 2014 and the Court of Appeal in 2016. This victory for freedom of association laid the groundwork for future litigation, demonstrating the power of organised civil society.

The pivotal legal challenge came in *Letsweletse Motshidiemang v The Attorney General*, initiated in September 2016. Motshidiemang, a gay man, argued that the criminalising provisions violated his constitutional rights to liberty, dignity, privacy, and freedom from discrimination. LEGABIBO joined the case as an *amicus curiae*, providing crucial expert evidence on the disproportionate negative impact of these laws on the LGBTQI+ community and demonstrating a material change in societal attitudes.

On 11 June 2019, the High Court delivered a unanimous and groundbreaking ruling, declaring Sections 164(a), 164(c), and 165 of the Penal Code unconstitutional. Judge Michael Leburu famously stated that such laws "deserve a place in the museum or archives and not in the world," emphasising that human dignity is harmed when minority groups are marginalised and that sexual orientation is an innate attribute. The court adopted a purposive approach to constitutional interpretation, rejecting bare assertions of public morality and finding no compelling state interest in criminalising consensual private same-sex conduct.

The government, however, appealed this decision. On 29 November 2021, the Court of Appeal unanimously upheld the High Court's ruling in *Attorney General v Motshidiemang*. The Court of Appeal, led by Justice President Ian Kirby, famously stated that the criminalising provisions "have outlived their usefulness, and serve only to incentivise law enforcement agents to become key-hole peepers and intruders into the private space of citizens." This decision was only the second time an apex court in Africa, after South Africa's Constitutional Court in 1998, had decriminalised same-sex relations. Crucially, the Attorney General subsequently confirmed the government's commitment to implement the decision.

Despite these judicial victories, the formal legislative repeal of the invalidated provisions from the Penal Code did not occur until March 2026 through subsidiary legislation under the Revision of the Laws Act. This gap between judicial pronouncement and statutory amendment highlights the necessity of continued civic pressure. While the rulings rendered the laws unenforceable, their presence on the statute books could still foster stigma and confusion. The sustained advocacy by civil society, as highlighted by Faith Gunda of CIVICUS, was instrumental in ensuring the final legislative alignment. However, challenges remain; social attitudes often lag behind legal progress, and conservative groups continue to mobilise against LGBTQI+ rights, particularly as a marriage equality case is anticipated to come before the High Court in July.

Botswana's journey towards decriminalising same-sex relations stands as a powerful illustration of how judicial courage, when coupled with persistent civic action, can dismantle discriminatory legal frameworks. The *Motshidiemang* judgments, at both High Court and Court of Appeal levels, represent a significant jurisprudential contribution, particularly in their expansive interpretation of constitutional rights and their rejection of public morality as a sole determinant in constitutional adjudication. The formal legislative repeal in March 2026 solidifies these gains, offering a blueprint for other African nations grappling with similar colonial-era laws.

For legal practitioners in Botswana, this development opens new avenues for advocating for LGBTQI+ rights, particularly in areas such as anti-discrimination protections beyond employment, family law, and the ongoing pursuit of marriage equality. Lawyers must remain vigilant in monitoring the implementation of these changes and be prepared to challenge any lingering discriminatory practices or policies. The experience also underscores the importance of collaborating with civil society organisations, whose grassroots efforts and strategic litigation are vital in translating legal victories into lived realities. The path to full equality is long, with social attitudes and potential legislative backlashes posing ongoing challenges, necessitating continued vigilance and advocacy from the legal community and human rights defenders.