Decolonising discriminatory laws

In a landmark judgement on June 11, Botswana’s High Court unanimously ruled that its penal laws that criminalise consensual same-sex sex were unconstitutional.

The court held that the discriminatory laws infringed upon lesbian, gay, bisexual, transgender and queer (LGBTQ+) people’s rights to privacy, liberty, equality and dignity. Furthermore, it ruled that the infringements were unjustifiable as they served no legitimate public interest.

Accordingly, the court struck down the impugned sections that prescribed a sentence of up to seven years imprisonment.

The court noted that “with the advent of colonialism, the offence of sodomy was henceforth imported into the British colonies during the 17th and 20th centuries.”

However, these colonial, homophobic laws have been retained by many independent African nations and used to perpetuate discrimination against people based on their dissident sexualities and genders.

The Botswana High Court’s refusal to affirm the state-sponsored homophobic laws mark a legal break from the colonial legacy of homophobia which continues to pollute post-independent African legal systems. 

Nelson Mandela stated that homosexuality was not unAfrican, but “just another form of sexuality that has been suppressed for many years.”

The ruling contributes to the decolonising of Botswana law and society by contesting the colonially propagated myth of a solely heterosexual Africa. It  also shows how LGBTQ+ rights are not contrary to African cultures, but rather part and parcel of the process of decolonisation. It situates LGBTQ+ rights within a framework of shared humanity.

In a Malawian context, this resonates with different communities’ philosophies of uMunthu, the general understanding that a person is a person through others.

In stating that “any discrimination against a member of the society is discrimination against all,” the court recognised that criminalising one segment of society based on their sexual orientation undermines everyone’s humanity as it disregards acceptance and compassion.

Asserting that “sodomy laws . . . deserve archival mummification, or better still, a museum peg, shelf or cabinet for archival display” the ruling requires us to ask why sodomy laws, relics of the colonial era, still exist in African legal systems.

The ruling calls into question the homophobic decisions by courts across Africa—including Kenya, Zimbabwe and Malawi—where they have relied partially on the idea that African cultures do not accept homosexuality to justify the criminalisation of consensual same-sex relationships.

In 2003, the Botswana Court of Appeal’s Kanane case held that the time had “not yet arrived to decriminalise homosexual practices”.

However, the recent Botswana High Court ruling states the “time has come that private same sexual intimacy between adults must be decriminalised”. In doing so, the court emphasises the fluidity and flexibility of culture.

By accepting that its laws need to provide for the realities of dynamic African sexualities and genders, the decriminalisation of consensual same-sex relationships is Botswana decolonising.

However, decolonisation should not be taken as a return to a romanticised pre-colonial ideal. Instead, decolonisation is a forward-looking consideration as much as it is backwards-looking.  It is reclamation of history, while moving towards a future where all African people can determine the trajectory of their lives and fully participate in the development of their communities.

The ruling in Botswana provides a legal basis to hope and work towards such a future.

It illustrates that even where there have been unsuccessful challenges to homophobic laws through the court system, progress is still possible when there is true and robust engagement with human rights in the context of a shared humanity.

The ruling exemplifies that when communities come together to protect LGBTQ+ people, the nation as a whole moves towards being more compassionate, just, and caring thus strengthening the social fabric of society. n

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