Botswana High Court declares sections 164(a), (c) and 165 of the Botswana Penal Code criminalizing homosexual acts between two adults in private as unconstitutional as they violated the right to liberty, privacy, dignity and non-discrimination
June 14, 2019
Letsweletse Motshidiemang v Attorney General; LEGABIBO (Amicus Curiae)
High Court of Botswana at Gaborone
M Leburu, A B Tafa, J Dube, JJ
June 11, 2019
Reported by Faith Wanjiku
Constitutional Law- fundamental rights and freedoms-right to liberty, privacy, dignity and non-discrimination– sexual orientation- consensual sex between adult same-sex couples in private-whether sections 164(a); 164(c) and 165 of the Penal Code on unnatural offences were ultra vires the Constitution, in that they violated the right to liberty, privacy, dignity and non-discrimination -Constitution of Botswana, sections 3, 9 and 15; Penal Code, sections 164 (a); (c) and 165
Constitutional Law- fundamental rights and freedoms- right to privacy-sexual orientation- consensual sex between adult same-sex couples in private -unconstitutionality of private indecency- where a court could severe a provision so as to remedy its unconstitutionality-nature and scope of the doctrine of severability-whether section 167 of the Penal Code, which sought to regulate conduct deemed grossly indecent, done in private was a violation of one’s privacy or liberty and ought to be severed to remedy its unconstitutionality
Constitutional Law- interpretation of the Constitution – principles for interpretation of the Constitution-what were the guiding principles in interpretation of the Constitution- under what circumstances would public interest and the will of the people be put into consideration during interpretation
Constitutional Law- fundamental rights and freedoms-constitutional limitations on fundamental rights-onus of the state in relying on constitutional limitations-what considerations were to be taken by the state in relying on one of the constitutional limitations to the fundamental rights
Statutes- interpretation of statutes- interpretation of sections 164 (a); (c) and 165 of the Penal Code-unnatural offences- where the provisions of sections 164 (a);(c) and 165 were contested for being vague – presumption of validity or constitutionality of a provision of an Act- nature and scope of the doctrine of vagueness-whether section 164(a), section 164(c) and section 165 of the Penal Code should be struck down for being unconstitutional due to the vagueness of the said sections; particularly with respect to the meaning of “carnal knowledge” “against the order of nature”
Words and Phrases- privacy-definition of privacy- the right to live a life of seclusion, the right to be free from unwanted publicity, and the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned- Black’s Law Dictionary 1196 (6th ed 1990)
The applicant was a 24 year old student of the University of Botswana and a homosexual. According to him, being homosexual was not something new in his life but that it was something that he had learnt to live with whilst growing up since the age of ten. Whilst growing up, he knew that he was different and such difference had long been recognized by his parents. As a little boy he did not play with or do things that little boys like, such as playing with toys and other boyish games. At the time that he started to have sexual feelings at the age of 12 -13, he was not interested in girls. As he grew older, the applicant thought things would change and, that he would act like boys, but that never happened, even after he had reached puberty.
The applicant was taunted and called degrading names because of his disposition. It was at junior school, after he had managed to summon his guts and courage that he expressed his feelings to another boy and informed him that he loved him. As an adult now, it was the applicant’s averment that nothing had changed, he still loved men and he was sexually attracted to men. He did not know why he liked men and did not know why he was different from other men who loved women. He had accepted to live with that condition and it had become his identity. Currently, he was in a sexually intimate relationship with a man.
The impugned sections 164(a),(c) and 165 of the Penal Code of Botswana (Penal Code), according to the applicant, proscribed and prohibited him from exercising, enjoying and engaging in sexual intercourse with a man per anum; which as a homosexual was his only mode of sexual intercourse. By virtue of one or more of the impugned provisions of the Penal Code, he averred that he was prohibited from expressing the greatest emotion of love, through the act of enjoying sexual intercourse with another consenting adult male, that he was sexually attracted to and who was sexually attracted to him, as consenting adults. If he engaged in such method of sexual intercourse, he would be committing a crime that attracted a sentence of imprisonment for a term not exceeding seven years. Attempting to engage in such an act was also a crime that attracted a sentence of imprisonment for a term not exceeding seven years.
As a homosexual, and as long as the said provisions remained extant, he was prohibited from having anal intercourse and to that extent, he was forced to live in secrecy, under a shadow and not to openly and publicly declare his sexual affection and attraction to men or to solicit men he was interested in, for fear that the actions would be construed to be an attempt to engage in carnal knowledge against the order of nature. The applicant submitted that the impugned provisions of the Penal Code were unconstitutional as they were not made for the peace, order and good government of Botswana. Furthermore, that such provisions were vague in that there was no clarity on the exact type of conduct that was criminalized. He had further submitted that the said provisions violated his right and freedom to liberty, by prohibiting him from using his body as he chose and saw fit, so long as he did not cause any disrespect and harm to the enjoyment of the freedoms by others. It was his view that such laws subjected him to inhuman and degrading treatment in that they prohibited him from expressing sexual affection through the only means available to him as a homosexual. On the alleged violation of his privacy, he asserted that the impugned provisions interfered with an intimate and personal aspect of his life that was not harmful to the public interest or public good.
On discrimination, it was the applicant’s averment that although the law appeared, at face value, non- discriminatory, its effect was discriminatory in that it perpetuated negative stigma against homosexuals. Furthermore, he argued that in effect, the law was burdensome on him than it was on females who had other means of enjoying penetrative sexual intercourse.
- Whether sections 164(a); 164(c) and 165 of the Penal Code on unnatural offences were ultra vires the Constitution, in that they violated the right to liberty, privacy ,dignity and non-discrimination.
- Whether section 167 of the Penal Code, which sought to regulate conduct deemed grossly indecent, done in private was a violation of one’s privacy or liberty and ought to be severed to remedy its unconstitutionality.
- Whether section 164(a), section 164(c) and section 165 of the Penal Code should be struck down for being unconstitutional due to the vagueness of the said sections; particularly with respect to the meaning of “carnal knowledge” “against the order of nature”.
- What were the guiding principles in interpretation of the Constitution?
- What was nature and scope of the doctrine of severability?
- What was nature and scope of the doctrine of vagueness?
- What considerations were to be taken by the state in relying on one of the constitutional limitations to the fundamental rights,
- Whenever the state sought to rely on one of the constitutional limitations to the fundamental rights, the State was then saddled with the onus to prove that such limitation squarely satisfied the constitutional limitation, under the circumstances. The onus to justify a limitation to a fundamental right was not an easy one to discharge, considering that clauses which derogated from constitutional rights were to be narrowly construed, whereas clauses conferring and giving such rights received a generous construction
Relevant Provisions of the Law
Constitution of Botswana, 1966
Section 3-Fundamental rights and freedoms of the individual
Whereas every person in Botswana is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his or her race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest to each and all of the following, namely-
(a) life, liberty, security of the person and the protection of the law;
(b) freedom of conscience, of expression and of assembly and association; and
(c) protection for the privacy of his or her home and other property and from deprivation of property without compensation…
Section 9-Protection for privacy of home and other property
(1) Except with his or her own consent, no person shall be subjected to the search of his or her person or his or her property or the entry by others on his or her premises.
Section 15-Protection from discrimination on the grounds of race, etc.
(1) Subject to the provisions of subsections (4), (5) and (7) of this section, no law shall make any provision that is discriminatory either of itself or in its effect.
(2) Subject to the provisions of subsections (6), (7) and (8) of this section, no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.
(3) In this section, the expression “discriminatory” means affording different treatment to different persons, attributable wholly or mainly to their respective descriptions by race, tribe, place of origin, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.
Section 164-Unnatural offences
Any person who-
(a) has carnal knowledge of any person against the order of nature;
(c)permits any other person to have carnal knowledge of him or her against the order of nature,
Section 165- Attempt to commit unnatural offences
Any person who attempts to commit any of the offences specified in section 164 is guilty of an offence and is liable to imprisonment for a term not exceeding five years.
Section 167- Indecent practices between persons
Any person who, whether in public or private, commits any act of gross indecency with another person, or procures another person to commit any act of gross indecency with him or her, or attempts to procure the commission of any such act by any person with himself or herself or with another person, whether in public or private, is guilty of an offence.
- There were various ways upon which courts exercised jurisdiction over constitutional matters. A typical example could relate to judicial review of the exercise of executive powers. The courts on that score would be called upon to determine whether the exercise of such power, was traceable to any legal prescripts or whether the impugned decision fell within the recognized grounds for review.
- In the present matter, it was common cause that the applicant’s case was underpinned by sections 3,7,9 and 15 of the Constitution of Botswana, 1966 (the Constitution) and that gave imprimatur and seal of approval to the exercise of jurisdiction in the present constitutional adjudication and discourse.
- In the absence of any clear and specific ouster of the High Court’s jurisdiction on any matter, be it constitutional or not, the court had the necessary jurisdictional potestas and authority to intervene. There was no sight of any clear ouster of jurisdiction in the adjudication of the validity of sections 164(a) and (c), and section 165 of the Penal Code of Botswana. The instant court, was the ultimate interpreter and arbiter of the Constitution, hence the exercise of jurisdiction in the constitutional discourse was unimpeachable.
- A Constitution was an enduring supreme law that was crafted in broad, inclusive and open-ended language, and it was laden with values and beliefs associable with democracy and the rule of law. The court would interpret the Constitution as a living and dynamic charter of progressive human rights, serving the past, the here and now, as well as the unborn constitutional subjects.
- In construing the Constitution, the court would accord and give meaning and interpretation which would render it effective. The Constitution, should thus be given a generous construction, which would not unjustifiably erode civil liberties. For purposes of ascertaining the true meaning of words, a court should not look at the literal meaning per se, but should consider their setting, the context in which the words were used and the purpose for which the words were intended. Mere classical linguistic formalism was thus discouraged.
- The courts were further enjoined to have regard to any relevant international treaty, agreement or convention, as stated in section 24 of the Interpretation Act. It was further useful and pertinent that domestic laws were to be interpreted in a manner that did not conflict with Botswana’s international obligations.
- Where a particular provision of an Act was challenged for invalidity or unconstitutionality, the starting premise was the presumption of validity or constitutionality, otherwise captured as omnia praesumuntur rite esse acta, which verbalized that official acts, including enacted laws, were presumed to be valid and would where possible be interpreted to be lawful and effective, unless the contrary was shown. He who alleged such unconstitutionality of a statutory provision bore the onus of proving same, on a balance of probabilities. Where rights and freedoms were constitutionally conferred on persons, any derogation from such rights and freedoms ought to be narrowly and strictly construed. To justify such derogation, it was incumbent upon the justifier to prove that the measures adopted satisfied a particular public imperative or objective and further that such a measure was reasonable, within the democratic dispensation.
- The acceptability of the rule of law as a constitutional principle required that a citizen, before committing himself to any course of action, should be able to know in advance what were the legal consequences that would flow from it. Where those consequences were regulated by a statute, the source of that knowledge was what the statute said. Under the void for vagueness doctrine, a vague law was a violation of due process or the rule of law. It was on that basis that when a court was seized with an interpretation of a seemingly vague penal provision, it adopted an interpretation that favoured liberty (in favoram libertas) of the individual.
- In order to avoid the tentacles of the void for vagueness doctrine, what was required in the law, was certainty (ius certum principle) and not perfect lucidity. The doctrine of vagueness did not require absolute certainty of the laws. The doctrine of vagueness was founded on the rule of law, which was a foundational value of the constitutional democracy. It required that laws had to be written in a clear and accessible manner. What was required was reasonable certainty and not perfect lucidity. The doctrine of vagueness did not require absolute certainty of laws. The law had to indicate with reasonable certainty to those who were bound by it what was required of them so that they could regulate their conduct accordingly.
- It was a basic principle of due process that an enactment was void for vagueness if its prohibitions were not clearly defined. Vague laws offended several important values. First, because it was assumed that a man was free to steer between lawful and unlawful conduct, it was insisted that laws gave the person of ordinary intelligence a reasonable opportunity to know what was prohibited, so that he could act accordingly. Vague laws could trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement was to be prevented, laws had to provide explicit standards for those who applied to them. A vague law impermissibly delegated basic policy matters to policemen, judges, juries for resolution on an ad hoc basis, with the attendant dangers of arbitrary and discriminatory application.
- The Penal Code did not define what was carnal knowledge and the order of nature. As a matter of general proposition, it was prudent and logical that words used in an enactment, should be defined in the same piece of legislation. Where there were no definitions, the court as final arbiter, could provide a definition. The importance of a court-given definition could not be ignored because courts were sources of law. The courts, as functionaries within the open justice system, that subscribed to, amongst others, openness and transparency of judicial processes, and/or the publishing of court decisions or law reports, were sources of law. Examples (non-exhaustive) of where courts made law were thus: where the applicable statute had not rendered a definition to some conduct or transaction; secondly where there was a lacuna or casus omissi in the Act and thirdly in the development of common law.
- In the case of Gaolete v State  carnal knowledge was defined by the court as sexual intercourse, and the order of nature was defined as anal sexual penetration. The same definitions were embraced by the highest court of the land in Kanane v the State  (Kanane case) and the instant court was thus bound by such definition. On that basis, the provisions of section 164 (a) and (c) were not vague, having regard to the definition accorded thereto.
- Privacy was essential to who everyone was as a human being. It gave a person space to be himself/herself without judgment. It allowed persons to think freely without hindrance and was an important element of giving people personal autonomy and control over themselves and those who knew what about them.
- As a matter of general proposition, privacy, private life, honour and image of people were inviolable. The right to privacy was multifaceted and multi-pronged hence it was an arduous task to define privacy. However, such facets of privacy could only be unearthed and determined on a case by case basis. Privacy could relate to one’s physical body, (physical privacy). It could also relate to his/her personal information, otherwise termed informational privacy and lastly the privacy of choice. A few typical examples would amplify but simplify privacy: for example, a person’s right not to be arbitrarily searched by law enforcement agencies; a voter’s political privacy relating to his/her secret vote and/or a person’s right to choose an intimate or life partner. The list thereof was non- exhaustive.
- The right to privacy, it was common cause, was not absolute. Through reverse syllogism, any entitlement to privacy was what remained after the law had siphoned out from the wholesome basket of privacy, through acceptable limitations. Any interference with the right to privacy had to therefore be done under the aegis of some law; that it had to be for purposes of protecting the rights listed in section 9(2)(a) and (b) of the Constitution and lastly that such a limitation had to be reasonably justifiable in a democratic society. Any limitation not covered by that triad of limitations would not pass constitutional muster.
- At an international plane and sphere, the limited right to privacy was a cherished fundamental human right. The United Nations Declaration of Human Rights (1948), at article 12, posited that no one would be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone had the right to the protection of the law against such interference or attacks. Similarly, the International Covenant on Civil and Political Rights (1966) at article 17 stated that no one would be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
- The right to privacy was also included in:
(a) Article 14 of the United Nations Convention on Migrant Workers.
(b) Article 16 of the United Nations Convention on the Rights of the Child.
(c) Article 10 of the African Charter on the Rights and Welfare of the Child.
(d) Article 4 of the African Union Principles on Freedom of Expression (the right to access information).
(e) Article 11 of the American Convention on Human Rights.
(f) Article 5 of the American Declaration of the Rights and Duties of Man.
(g) Articles 16 and 21 of the Arab Charter on Human Rights.
(h) Article 21 of the ASEAN Human Rights Declaration; and
(i) Article 8 of the European Convention on Human Rights.
- The right to privacy had now been recognised to be an intrinsic part of the right to life and personal liberty under article 21 of the Constitution of India, 1950. Sexual orientation was an innate part of the identity of LGBT persons. Sexual orientation of a person was an essential attribute of privacy. Its core protection lay at the core of Fundamental Rights guaranteed by articles 14, 15 and 21 of the Constitution of India. The right to privacy was broad- based and pervasive under the constitutional scheme, and encompassed decisional autonomy, to cover intimate/personal decisions and preserved the sanctity of the private sphere of an individual. The right to privacy was not simply the right to be let alone and had travelled far beyond that initial concept. It now incorporated the ideas of spatial privacy, and decisional privacy or privacy of choice. It extended to the right to make fundamental personal choices, including those relating to intimate sexual conduct, without unwarranted State interference.
- The choice of a partner, the desire for personal intimacy, and the yearning to find love and fulfilment in human relationships had universal appeal, straddling age and time. In protecting consensual intimacies, the Constitution adopted a simple principle: the State had no business to intrude into those personal matters. Nor could societal notions of heteronormativity regulate constitutional liberties based on sexual orientation. Privacy recognised that everyone had a right to a sphere of private intimacy and autonomy which allowed everyone to establish and nurture human relationships without interference from outside the community. The way in which everyone gave expression to their sexuality was at the core of the area of private intimacy. If, in expressing their sexuality, they acted consensually and without harming one another, invasion of that precinct would be a breach of everyone’s privacy.
- Arbitrary intrusion upon another’s solitude or private affairs was highly offensive and thus an invasion of privacy. The attacked provisions impaired the applicant’s right to express his sexuality in private, with his preferred adult partner. The applicant had a right to a sphere of private intimacy and autonomy, which was not harmful to any person, particularly that it was consensual. There was no complainant/victim in that regard. Matters of personal intimacy and choice were central and key to personal liberty and autonomy and that it was not the business of the law to choose for a person his/her intimate partner.
- The sexual autonomy of an individual to choose his/her sexual partner was an important pillar and an insegragable facet of individual liberty. When the liberty of even a single person of the society was smothered under some vague and archival stipulation that it was against the order of nature or under the perceptions that the majority population was peeved when such an individual exercised his/her liberty, despite the fact that the exercise of such liberty was within the confines of his/her private space, then the signature of life melted and living became a bare subsistence and resultantly the fundamental right of liberty of such an individual was abridged.
- As a nation, there was an ardent need to respect diversity and plurality by being tolerant to minority views and opinions. There was no need to be too prescriptive and try to cajole people into becoming who and what they were not. Personal autonomy on matters of sexual preference and choice had to therefore be respected. Any criminalisation of love or finding fulfilment in love diluted compassion and tolerance.
- Sexuality was a wonderful gift from God. It was more than genital behavior. It’s the way everyone embodied and expressed themselves in the world. But all could not love another person intimately without embodying that love; without using their bodies to love. And that did involve genital behavior. Sexual love was for the purpose of giving and receiving pleasure with one’s most intimate partner. It was a means of deepening and strengthening the intimate union that existed. That could only be healthy and good if everyone’s behavior was consistent with who they were and with whom they loved, and when they were true to their own sexuality and orientation.
- Sexual orientation was innate to a human being. It was not a fashion statement or posture. It was an important attribute of one’s personality and identity; hence all and sundry were entitled to complete autonomy over the most intimate decisions relating to personal life, including choice of a partner. The right to liberty therefore encompassed the right to sexual autonomy. The right to liberty went beyond mere freedom from physical restraint or detention. It included and protected inherently private choices, free from undue influence, irrational and unjustified interference by others.
- Anal sexual penetration and any attempt thereof were prohibited and criminalised by sections 164(a), (c) and 165 of the Penal Code. Effectively, the applicant’s right to choose a sexual intimate partner was abridged. His only mode of sexual expression was anal penetration; but the impugned provisions forced him to engage in private sexual expression not according to his orientation; but according to statutory dictates. Without any equivocation, his liberty had been emasculated and abridged.
- Life without dignity was like a sound that was not heard. Dignity spoke, it had its sounds, it was natural and human. It was a combination of thought and feeling. It had to be borne in mind that dignity of all was a sacrosanct human right and sans dignity, human life lost its substantial meaning. To deny any person his or her humanity was to deny such person human dignity and the protection and upholding of personal dignity was one of the core objectives of Chapter 3 of the Constitution of Botswana. Members of the gay, lesbian and transgender community although no doubt a small minority, and unacceptable to some on religious or other grounds, formed part of the rich diversity of any nation and were fully entitled in Botswana, as in other progressive States, to the constitutional protection of their dignity.
- Sexual intercourse was not just for purposes of procreation. It constituted an expression of love and intimacy. The impugned sections denied the applicant the right to sexual expression in the only way available to him. Such a denial and criminalization went to the core of his worth as a human being. Put differently, it violated his inherent dignity and self-worth. All human beings were born free and equal in dignity. Dignity acted as a core of a diverse but interrelated body of inalienable rights. Human dignity referred to the minimum dignity and belonged to every human being qua human. It did not admit of any degrees. It was equal for all humans.
- The State had a duty to uphold the fundamental human rights of every person and to promote tolerance, acceptance and diversity within the constitutional democracy. That included taking all necessary legislative, administrative and other measures to ensure that procedures existed whereby all State – issued identity documents which indicated a person’s gender/sex reflected the person’s self- defined gender identity. By parity of reasoning and logic, the applicant’s sexual orientation, lay at the heart of his fundamental right to dignity. It was his way of expressing his sexual feelings, by the only mode available to him. His dignity ought to be respected, unless lawfully restricted.
- The framers of the Constitution did not intend to declare in 1966, that all potentially vulnerable groups and classes, who would be affected for all time by discriminatory treatment, had been identified and mentioned in the definition in section 15(3). They did not intend to declare that the categories mentioned in that definition were forever closed. In the nature of things, as farsighted people trying to look into the future, they would have contemplated that, with the passage of time, not only groups or classes which had caused concern at the time of writing the Constitution but other groups or classes needing protection would arise. The categories might grow or change. In that sense, the classes or groups itemised in the definition would be and were by way of example of what the framers of the Constitution thought worth mentioning as potentially some of the most likely areas of possible discrimination. It was henceforth determined that sex, as used in Section 3 of the Constitution included sexual orientation.
- An interrogation of the impugned provisions revealed that the said provisions had a substantially greater impact on the applicant as a homosexual, who engaged only in anal sexual penetration; than it did on heterosexual men and women. The fact that anal intercourse was the only means available to the applicant was dispositive. Denying the applicant the right to sexual expression, in the only way natural and available to him, even if that way was denied to all, remained discriminatory in effect, when heterosexuals were permitted the right to sexual expression, in a way that was natural to them. Simply put, it was indirect discrimination founded upon sexual orientation. The impugned provisions rendered the applicant a criminal, or an unapprehended felon, always on tenterhooks, waiting to be arrested. Sections 164 and 165 were discriminatory in that effect.
- A democratic, universality, caring and aspirationally egalitarian society embraced everyone and accepted people for who they were. To penalize people for being who and what they were not was profoundly disrespectful of the human personality and violatory of equality. Equality meant equal concern and respect across difference. Respect for human rights required the affirmation of self, not the denial of self. Equality therefore did not imply a level or homogenization of behavior or extolling one form as supreme, and another as inferior, but an acknowledgement and acceptance of difference. At the very least, it affirmed that difference should not be the basis for exclusion, marginalization and stigma. At best, it celebrated the vitality that it brought to any society. The test of tolerance was not how one found space for people with whom, and practices with which, one felt comfortable, but how one accommodated the expression of what was discomforting.
- Whenever the state sought to rely on one of the constitutional limitations to the fundamental rights, the State was then saddled with the onus to prove that such limitation squarely satisfied the constitutional limitation, under the circumstances. The onus to justify a limitation to a fundamental right was not an easy one to discharge, considering that clauses which derogated from constitutional rights were to be narrowly construed, whereas clauses conferring and giving such rights received a generous construction.
- It would be irresponsible in the highest degree for the court to make findings based on speculative submissions and on perceptions which could or could not be held by the public without any reliable factual material to support them. In addition to providing evidence to justify the limitation taken, the state had to provide evidence to prove that there was no alternative or lesser means than the limitation chosen. No such evidence had also been presented, but just bald assertions to limit fundamental rights. Concrete evidence was particularly important in litigation where a law affected constitutional rights. The amicus in casu was a friend in need and indeed. It produced scientific evidence on how the said penal provisions impacted negatively on the LGBT community. Such evidence was never controverted. Even if such evidence had not been controverted, the court was still enjoined to critically assess the merits/ demerits of such evidence.
- An expert witness was required to assist the court and not to usurp the function of the court. Expert witnesses were required to lay a factual basis for their conclusions and explain their reasoning to the court. The court was then duty bound to satisfy itself as to the correctness of the expert’s reasoning and scientific criteria. Absent any reasoning, such an opinion was inadmissible. The court after extensively considering the expert’s report, filed by the amicus, found the said report credible, having regard to the factual matrix, the study methodology and the research employed.
- Public opinion was relevant in matters of constitutional adjudication, but it was not dispositive. Such public opinion was rendered lilliputian by the towering and colossal human rights triangle of constitutionalism, namely; liberty, equality and dignity. Prevailing public opinion, as reflected in legislation, international treaties, was a relevant factor in determining the constitutionality of a law or practice, but it was not decisive. The Court had no licence to read its own predilections and moral values into the Constitution, but it was required to consider the substance of the fundamental right at issue and ensure contemporary protection of that right, in the light of evolving standards of decency, that marked the progress of a maturing society. In carrying out its task of constitutional interpretation, the court was not concerned to evaluate and give effect to public opinion.
- Criminalising consensual same sex in private, between adults was not in the public interest. Such criminalisation, it had been shown by evidence availed by the amicus, disproportionally impacted on the lives and dignity of LGBT persons. It perpetuated stigma and shame against homosexuals and rendered them recluse and outcasts. There was no victim within consensual same sex intercourse inter se adults. There was no compelling state interest that was there, necessitating such laws. Private places and bedrooms should not be manned by sheriffs to police what was happening therein. Such penal provisions exceeded the proper ambit and function of criminal law in that they penalised consensual same sex, between adults, in private, where there was no conceivable victim and complainant.
- The impugned penal provisions oppressed a minority and then targeted and marked them for an innate attribute that they had no control over and which they were singularly unable to change. Consensual sex conduct, per anus, was merely a variety of human sexuality. Even if the respondent’s public interest or morality justification was to be subjected to the criterion of reasonable and justifiable in an open democratic society, such justification did not pass constitutional muster. The test of what was reasonably justifiable in a democratic society was an objective one. There was nothing reasonable and justifiable by discriminating against fellow members of a diversified society. The state has failed to single out the objective that was intended to be satisfied by the impugned provisions.
- The embodiment of the three arms of government had loudly spoken on the need to protect the rights of the gays, transgenders, lesbians etc. The nation had not been left behind. The nation’s enduring chorus, and crescendo on the same point, was loud and clear. It could be heard from afar and it was not far from being heard. In terms of Botswana National Vision 2016, following nationwide consultation, as a Nation, it adopted several pillars that anchored its vision. The country accepted, amongst others, to be “A Compassionate, Just and Caring Nation.” It further aspired to be “An Open, Democratic and Accountable Nation” and lastly “A Moral and Tolerant Nation.”
- To discriminate against another segment of the society polluted compassion. A democratic nation was one that embraced plurality, diversity, tolerance and open- mindedness. Democracy itself functioned, so long as the differences between groups did not impair a broad substrate of shared values. The shared values were as contained in the National Vision. The task of laws was to bring about the maximum happiness of each individual, for the happiness of each would translate into happiness for all. The National aspirations and Vision therefore spoke for themselves and required no further interrogation.
- In the Kanane case, the Court of Appeal, in 2003, said time had not yet arrived to decriminalise homosexuals’ practices. With the greatest of respect and deference, the instant court said, dies venit, or simply put, time had come that private same sexual intimacy between adults had to be decriminalised, as it was thereby proclaimed. The retention of the sodomy provisions in the Penal Code, imposed unconstitutional burden on the applicant’s fundamental rights of privacy, dignity, liberty and equal protection of the law; taking into account that the applicant’s only available sexual avenue, was per anum.
- The sodomy provisions, as foreshadowed above, were a relic of Victorian era and were influenced by Judeo- Christian teachings. Such teachings recognized, initially, that sexual intercourse was only for procreation. It was common cause that such a premise was no longer valid and sustainable. People entered into intimate sexual relationships not only for purposes of procreation, but for a host of several factors. Such procreation-induced rationale was thus no longer tenable. If the reason or rational for the law ceased, the law had to also cease, aptly framed as cessante ratione legis, cessat ipsa lex. Sodomy laws therefore deserved archival mummification, or better still, a museum peg, shelf or cabinet for archival display.
- The constitutional ethos of liberty, equality and dignity were paramount. The Constitution was a dynamic, enduring and a living charter of progressive rights; which reflected the values of pluralism, tolerance and inclusivity. Minorities, who were perceived by the majority as deviants or outcasts were not to be excluded and ostracized. Discrimination had no place in the world. All human beings were born equal. According to Nelson Mandela, a paragon and epitome of humility, dignity, sagacity and tolerance, in response to some divergent views that homosexuality was un-African he stated that homosexuality was just another form of sexuality that had been suppressed for years. It was something we were living with.
- As long as the applicant displayed affection, in private and consensually with another man, such conduct was not, injurious to public decency and morality. There were adequate statutory measures or regulatory provisions that catered for immoral acts of indecency done in public. There were further adequate measures to deal with non-consensual sexual encounters, as referenced under sections 141 (rape), 146 (indecent assault), 147 (defilement) etc of the Penal Code, which provided adequate air cover and protection, in the event the rights of any person were under ground-attack.
- Consensual adult sexual intercourse, between homosexuals, lesbians, transgenders, etc, did not trigger any erosion of public morality – for such acts were done in private. The Wolfenden Report demystified any lingering question by postulating that there had to remain a realm of private morality and immorality which was not the laws’ business. No solace and joy was thus derived from retaining such impugned penal provisions.
- The impugned provisions, even viewed from a regulatory and enforcement prism, did not serve any useful purpose. Legislative effectiveness posited that laws should not only communicate its purpose and the means by which it achieves that purpose, but that such laws should be capable of implementation and enforcement.
- The severability of the valid and invalid provision of a statute or contract did not depend on whether such provisions were enacted in the same section or different section. It was not the form, but the substance of the matter that was fundamental and that had to be ascertained, on an examination of the Act or document as a harmonious whole, having regard to the setting, the context and scope of the relevant provision in question. Likewise, when the valid and the invalid parts of a statute were independent and did not form part of a scheme and after severance, what was left was so thin and truncated, as to be in substance different from what it was when it emerged out of legislature, then the remainder should also be jettisoned in its entirety.
- It had to always be borne in mind that under the doctrine of severability, the role of the court was to review and interpret the provisions in order to determine their validity, rather than drafting of new legislation by the court, which would thus be a usurpation of legislative function. Caution therefore ought to be exercised against judicial arrogation of Parliament’s essential legislative function. In casu, it was not the business of the law to regulate private consensual sexual encounters between adults. The same applied to issues of private decency and/or indecency between consenting adults. Any regulation of conduct deemed indecent, done in private between consenting adults, was a violation of the constitutional right to privacy and liberty, as outlined above. By invoking textual surgery, any reference to private indecency ought to be severed and excised from section 167 of the Penal Code, so that its umbrage and coverage was only public indecency. Even after such severance, section 167 of the Penal Code thereof remained intelligible, coherent and valid.
- There had to remain a realm of private morality and immorality, which should not be the province of the law, particularly where there was no victim or complainant and when such conduct was consensual. In the event that there could be indecency with a minor and/or an adult, without the consent of the said adult, but done in private, there were adequate penal provisions to deal with such infraction. No justification had been given by the respondent as to why a person’s right to privacy and autonomy ought to be curtailed, relating to consensual acts done in private. In any event, such curtailment of fundamental rights could not be justified within the democratic dispensation, nor did such abridgment satisfy the proportionality test. It was accordingly ordered that the word “private” be and was thereby severed and excised from section 167 of the Penal Code.
- It was the decision of the Court that sections 164(a); 164(c) and 165 of the Penal Code were declared ultra vires the Constitution, in that they violated section 3 (liberty, privacy and dignity); section 9 (privacy) and section 15 (discrimination). Under section 167 of the Penal Code, the word “private”, was to be severed and excised therefrom, so as to remove its unconstitutionality from the remaining valid provision.
- “[Orbiter] Before I conclude, I am greatly indebted to the attorneys and advocate who appeared before us, and their erudite submissions and heads of argument that assisted the Court in this weighty matter. The amicus was not only a friend in need, but a friend indeed. It is however, not the usual practice of the courts to award costs or condemn the amicus with an order for costs; hence no order shall ensue in that regard.”
Application allowed; costs to the applicant; no order as to costs in relation to the amicus curiae – LEGAGIBO.
(a) Sections 164(a), 164(c) and 165 of the Penal Code (Cap 08:01), Laws of Botswana be and were thereby declared ultra vires sections 3, 9 and 15 of the Constitution and were accordingly struck down;
(b) The word “private” in section 167 of the Penal Code was severed and excised therefrom and the section to be accordingly amended;
Relevance to the Kenyan Situation
The Constitution of Kenya, 2010 provides for the national values and principles of governance in article 10 (2) (b) to include human dignity, non-discrimination and equality.
Article 27 provides for equality and freedom from discrimination and that every person is equal before the law and has the right to equal protection and equal benefit of the law. Sub-article 4 provides further that the state shall not discriminate directly or indirectly against any person on any ground, including sex. Article 28 provides for human dignity and that every person has inherent dignity and the right to have that dignity respected and protected. Article 31 provides that everyone has the right to privacy which includes the right not to have their person, home or property searched.
The Penal Code Cap 63 Laws of Kenya provides in section 162 that any person who has carnal knowledge of any person against the order of nature; or permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years.
Section 165 provides that any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.
Article 1 of the Universal Declaration of Human Rights, 1948 provides that all human beings are born free and equal in dignity and rights. Article 2 provides that everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind which includes sex. Article 7 provides that all persons are equal before the law and are entitled without any discrimination to equal protection of the law.
Kenyan law as can be seen above prohibits sexual conduct between adults of the same sex.
There has been case law in Kenya pertaining to issues to do with same sex adult couples. In Eric Gitari v Non- Governmental Organisations Co-ordination Board & 4 others  eKLR, the petitioner sought to register an NGO which had at its core the objective of protection of the human rights of those who belong to the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community. His application was made to the Non-Governmental Organizations’ Co-ordination which declined it contending that the Penal Code criminalized gay and lesbian liaisons as they went against the order of nature.
The Court however held that the Constitution of Kenya, 2010 in article 36 granted every person the right to form an association of any kind and that an application to form an association could only be refused on reasonable grounds. It went on further to state that the fact that the State did not set out to prosecute people who confessed to be lesbians and homosexuals in the country was a clear manifestation that such sexual orientation was not necessarily criminalized. More importantly, the Penal Code did not criminalize the right of association of people based on their sexual orientation, and did not contain any provision that limited the freedom of association of persons based on their sexual orientation.
By refusing to register the proposed NGO because it objected to the name chosen for it, or because it considered that the group whose interests the proposed NGO sought to advocate was not morally acceptable in Kenyan society, then the Board had arrogated to itself, contrary to the Constitution, the power to determine which person or persons were worthy of constitutional protection, and whose rights were guaranteed under the Constitution.
The same case was followed by an appeal at the Court of Appeal by the respondents in Non-Governmental Organizations Co-Ordination Board v EG & 5 others  eKLR. The Court of Appeal upheld the High Court’s decision in a majority decision and held that the Constitution extended the definition of ‘person’ from only the natural, biological human being to include legal persons. Neither article 36 of the Constitution nor the definition of “person” in article 260 of the Constitution created different classes of persons. There was nothing that indicated that the Constitution, when referring to ‘person’, intended to create different classes of persons in terms of article 36 based on sexual orientation. It further held that it was arbitrary to speculate and categorize LGBTIQ as persons who had the propensity to destroy a society by contravening the provisions of the Constitution or the Penal Code, or as a group bent on ruining the institution of marriage or culture. Overturning the impugned judgment would undermine the gains made over the years in promoting, protecting and building a culture of respect and tolerance of differences that abound in the society.
In Eric Gitari v Attorney General & another  eKLR, the petitioner brought a petition before the High Court seeking inter-alia a declaration of sections 162 and 165 of the Penal Code, Cap 63 to be unconstitutional, and accordingly void and invalid to the extent that they purport to criminalise private consensual sexual conduct between adult persons of the same sex, as mandated by articles 2 (4), and 23 (3) (d) of the Constitution of Kenya, 2010.
The Court held that the matter affected more than the Petitioner. The entire LGBTIQ community would be affected by the decision and considering the discussion on the status of the members of the LGBTIQ community in the Republic, was no small exploit. Therefore, the matters raised in the Petition were weighty and had important consequences. It added that the issues raised substantial questions of law under article 165 (3) (d) of the Constitution that deserved the constitution of a bench of Judges by the Chief Justice for hearing and determination.
The bench was constituted in EG & 7 others v Attorney General; DKM & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae) and a three judge bench ruled that section 162 (a) (c) of the Penal Code on unnatural offences and section 165 of the Penal Code on indecent practices between males was constitutionally compliant and in conformity with the principles of legality. The High Court further held that unless article 45(2) was amended to recognize same sex unions, it was difficult to agree with the petitioners’ argument, that, there could be safe nullification of the impugned provisions, whose effect would be to open the door for same sex unions and without further violating article 159 (2)(e) which enjoined the court to protect and promote the purpose and principles of the Constitution.
Matters of the LGBTIQ are sensitive emerging issues currently globally and various international jurisdictions are decriminalizing homosexuality with Botswana, an African country, being the latest. The case will therefore serve as an important precedent should Kenya decide to also decriminalize homosexuality or when there are pending matters to be determined in courts on the rights of the LGBTIQ community.