In a momentous case that prompted celebration among gay people and civil rights activists around the continent of Africa, Botswana’s High Court overturned laws Tuesday that criminalised homosexuality.
Yet the ruling was delivered only weeks after the High Court of Kenya upheld laws that criminalise gay sex, underscoring the wide differences in how LBGT people are treated across Africa, where views have been shaped by religion, diverse governments and colonial history.
What happened in Botswana?
An anonymous plaintiff, identified in court papers only as L.M., challenged the anti-sodomy laws last year. In a written statement read by the applicant’s lawyers in court, L.M. said, “We are not looking for people to agree with homosexuality but to be tolerant.”
When the case was brought before the court, a lawyer for the government argued that the law should not be overturned because it reflects the values of Botswana’s society, and pressed the challengers to provide evidence that those values had changed. But on Tuesday, three judges voted unanimously to revoke the laws.
Delivering the ruling, Judge Michael Leburu said the laws were “discriminatory” toward gay people and violated Botswana’s constitution, arguing that overturning them was a matter of protecting human rights.
Activists and gay rights groups hailed the decision. Matlhogonolo Samsam, a spokeswoman for Lesbians, Gays and Bisexuals of Botswana, called it “a historical moment for us.”
How does the rest of Africa compare?
Thirty-two of Africa’s 54 nations have laws that criminalise consensual, same-sex conduct, according to Human Rights Watch, with varying provisions.
South Africa became the first nation on the continent to decriminalise homosexuality in 1998, when the Johannesburg High Court ruled that the nation’s sodomy laws violated the country’s newly adopted, post-apartheid constitution.
Since 2010, several more countries in Southern Africa have decriminalised same-sex relations, including Mozambique, Angola and Lesotho. In 2006, South Africa legalised gay marriage, becoming the fifth country in the world to do so.
These changes often followed general efforts to reform the penal code and campaigns by public health officials to counter the spread of HIV, said Neela Ghoshal, a senior researcher with Human Rights Watch.
She said that broad societal movements, such as the end of apartheid in South Africa in the 1990s or the Arab Spring uprising that began in Tunisia in 2010, had also created space for gay rights movements to grow.
But despite South Africa’s tolerant laws, gay and transgender people remain the target of violence there, exemplifying the wide disparities in some African countries between what the legal code says and how authorities choose to enforce it.
In some countries, Ghoshal said, long-standing laws criminalising homosexuality are not enforced at all, while in countries that have never had anti-gay laws, there remains social stigma, violence and discrimination.
She noted that in Kenya — where the High Court upheld laws that criminalise gay sex last month — people in the capital were largely tolerant while those in parts of the countryside tended to be more disapproving.
“There are parts of Kenya where bubbles can develop,” she said. "There are parts of the country that are very deeply religious and there are other parts that are very ‘live and let live.’”
Some governments have taken an active role in cracking down on gay people. In Egypt, Ghoshal said, movements for gay rights were stifled after the Arab Spring by the rise of President Abdel-Fattah el-Sissi, and police began to target activists.
“There probably are more people in prison in an LGBTIQ rights context in Egypt than in any other place in the world,” she said.
Similarly, Uganda’s legislature has adopted hostile positions toward gay people, in part influenced by conservative evangelical Christian ministers, said Adotei Akwei, deputy director for advocacy and government relations for Amnesty International. A Ugandan court struck down a punitive anti-gay law in 2014, but left open the possibility that the measure could be revived.
Akwei said that the Botswana decision was “a wonderful step against the current” in a continent that largely “has had a very conservative and hostile view of LGBTIQ rights in principle.”
Where did these laws originate?
Many of the anti-gay laws have been in place since the 19th century, when Africa was carved up into colonies by European powers.
Homosexuality had been illegal in Botswana since the late 1800s, for instance, when the territory was ruled by Britain and called Bechuanaland. Section 164 of the country’s penal code banned “unnatural” acts that it defined as “carnal knowledge against the order of nature,” and it made such offenses punishable by up to seven years in prison.
Britain had criminalised male homosexuality since 1553, and extended similar policies to the colonies it developed around the world.
By the time Britain began to decriminalise homosexuality, in 1967, anti-gay stigmas and laws had become well entrenched in former colonies, often including pieces of the Victorian language that the British left behind. Around the world, more than half of the nations that criminalise homosexuality were once British possessions.
Some African governments have found these laws useful, Akwei said, to suppress parts of civil society and preserve their power. “These were all laws that were designed to benefit the colonial powers and make sure that their subjects knew their place,” he said.
Conservative religious constituencies, both Christian and Muslim, have also influenced some governments: While evangelical Christianity is influential in Uganda, conservative Islam has helped shape attitudes toward gay people in Sudan and Somalia, where homosexuality is punishable by death.
Botswana High Court has decriminalised homosexuality. Source: Getty Images
Are there prospects for further change?
Conservative social mores remain a force across much of the continent. Many Kenyans hold strong anti-gay views — 90 per cent of Kenyans said society should not accept homosexuality, according to a 2013 Pew survey — and the judges in last month’s decision in Kenya argued that homosexuality clashed with traditional values.
An attempt to strike down Botswana’s anti-sodomy laws failed in 2003, but activists made “incremental” progress later, said Anna Mmolai-Chalmers of Lesbians, Gays and Bisexuals of Botswana. Botswana, which is regarded as one of Africa’s most stable democracies, changed its employment act to prevent discrimination against LGBTIQ people in 2010, and the High Court ruled in favor of a transgender man who sought legal recognition as a male in 2017.
And September 2018, President Mokgweetsi Masisi of Botswana expressed tentative support for gay people, saying, “Just like other citizens, they deserve to have their rights protected.”
Ghoshal, the Human Rights Watch researcher, said that she was optimistic that an appeal could prevail in the Kenya case, and Mmolai-Chalmers said activists in Malawi and Mauritius had been encouraged by the gradual steps that led to change in Botswana.
“That’s the thinking at the moment: Let us claim the rights we know we are accorded as citizens, slowly, before we challenge decriminalisation,” she said.
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