Botswana: Treatment of homosexuals by society and the government; legal recourse and protection available to homosexuals who have been subject to ill-treatment (2003 - 2006)
Homosexual sex is criminalized in Botswana (DITSHWANELO 15 Feb. 2006; Globe and Mail 22 April 2006; CCIES 2004, 92). Consequently, the constitution does not contain provisions to protect citizens against discrimination based on sexual orientation (DITSHWANELO 15 Feb. 2006; SAJHR 2004, 474). According to a research paper published in the South African Journal of Human Rights (SAJHR), the Botswana Penal Code, specifically articles 164 and 167, makes sexual acts between same-sex partners a crime (2004, 467-68; DITSHWANELO n.d.). The research paper, written by a specialist in Botswana law, states these articles stipulate that anyone who has "carnal knowledge" of another "against the order of nature" or who commits acts of "gross indecency" is guilty of an offence (SAJHR 2004, 467-468). Of note is the fact that the terminology used in these articles became gender neutral in 1998 thereby criminalizing sexual activity between women, as well as between men (ibid., 468; HRW and ILGHC 2003, 285; DITSHWANELO n.d.). Those found guilty of an offence under sections 164 and 167 can be imprisoned for up to seven years (ibid.; CCIES 2004, 92).
According to The Continuum Complete International Encyclopedia of Sexuality (CCIES), homosexuals in Botswana are rarely prosecuted (2004, 92). That said, in 1995 a Botswana resident was charged with engaging in homosexual acts (SAJHR 2004, 466; DITSHWANELO n.d.). DITSHWANELO, the Botswana Centre for Human Rights, aided the Botswana resident in challenging the constitutionality of articles 164 and 167 of the Penal Code (ibid.). In 2002, judgement was passed on the case; articles 164 and 167 were ruled as constitutional by Botswana's High Court (ibid.). The judge reportedly reasoned that homosexuality is "an offence to public morality" stating that societies that do not criminalize "sexual immorality" are subject to "moral decline, health problems, and weak family structures" (ibid. 13 June 2003). The case was appealed (ibid. n.d.). In 2003, a judge in Botswana's Court of Appeal upheld the ruling that laws prohibiting homosexual acts are constitutional, reasoning that the state is entitled to discriminate in order to defend "public morality" (ibid. n.d.).
In spite of the fact that homosexuality is reportedly a taboo subject in Botswana (CCIES 2004, 92), an organization for gays, lesbians and transgendered people in Botswana called Legabibo does exist (ibid.; Globe and Mail 22 Apr. 2006; BTM 27 Oct. 2006). The government of Botswana, however, has refused to allow Legabibo to register as a non-governmental organization, which means that the group cannot apply to receive donor funding (ibid.; CCIES 2004, 92; Globe and Mail 22 Apr. 2006) or participate in public events (ibid.). The government reportedly reasoned that the group is "aiding and abetting" illegal acts by helping homosexuals and therefore should not be officially recognized (ibid; CCIES 2004, 92).
Sources indicate that homosexuals in Botswana experience rejection and victimization (Globe and Mail 22 Apr. 2006; CCIES 2004, 92). For example, an article published in a Botswana newspaper quotes a gay-rights advocate as saying that discrimination makes it difficult for homosexuals to gain access to health care (Mmegi 21 Nov. 2006). The article, which focuses on gay marriage in South Africa, also quotes several people (including a religious leader) who say that gay marriage is "sinful" and something they "detest" (ibid.). The Globe and Mail reports that "the threat of physical violence is pervasive" for Botswana's gays and lesbians (22 April 2006). DITSHWANELO likewise reports that members of the lesbian, gay, bisexual, and transgendered community experience "ignorance, violence, abuse and discrimination" in their daily lives (15 Feb. 2006). The CCIES reports that homosexuals are sometimes blackmailed and face "stigmatization and prejudice from family members, friends and society in general" (2004, 92).
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of additional sources consulted in researching this Information Request.
References
Behind the Mask (BTM) [Zambia]. 27 October 2006. Mashilo Mnisi. "Still Oblivious Battle After Many Years for Botswana Gays." <http://www.mask.org.za/article.php?cat=&id=1383> [Accessed 6 Feb. 2007]
The Botswana Centre for Human Rights (DITSHWANELO). 15 February 2006. "Press Statement Following a Workshop on Rights of Minority Groups." <http://www.ditshwanelo.org.bw/index/Current_Issues/Minority/ Press%20Release%20on%20Workshop%20on%20Rights%20of%20Minorities.htm> [Accessed 16 Jan. 2007]
_____. 13 June 2003. "Summary of Judgement in Kanane v. State 1995 BLR 94 (High Court)." <http://www.ditshwanelo.org.bw/index/Other/Gay_Rights/Kanane%20High%20Court%20Decision%20Summary.pdf> [Accessed 1 Dec. 2006]
_____. N.d. "Gays, Lesbians, and Bisexuals of Botswana." <http://www.ditshwanelo.org.bw/index/Other/Gay_Rights.htm> [Accessed 1 Dec. 2006]
The Continuum Complete International Encyclopedia of Sexuality (CCIES). 2004. Edited by Robert T. Francoeur, Raymond J. Noonan, Martha Cornog, et al. New York: Continuum. (Kinsey Institute Web site) <http://www.kinseyinstitute.org/ccies/> [Accessed 6 Feb. 2007]
The Globe and Mail [Toronto]. 22 April 2006. Stephanie Nolen. "Gays Take Cautious Steps to Come Out in Africa." <http://www.theglobeandmail.com/servlet/story/RTGAM.20060421.wxbotswana22/BNStory/International/home> [Accessed 6 Feb. 2007]
Human Rights Watch (HRW) and the International Gay and Lesbian Human Rights Commission (IGLHC). 2003.Scott Long. More Than a Name. State-Sponsored Homophobia and Its Consequences in Southern Africa. <http://www.hrw.org/reports/2003/safrica/safriglhrc0303-07.htm#P3056_614820> [Accessed 16 Jan. 2007]
Mmegi [Gaborone]. 21 November 2006. Vol. 23 No. 175. Tuduetso Satsiba."Botswana Gays Rejoice RSA Victory." <http://www.mmegi.bw/2006/November/Tuesday21/247920822741.html> [Accessed 26 Jan. 2007]
South African Journal on Human Rights (SAJHR) [Johannesburg]. 2004. Vol. 20, Part 3. Kealeboga N. Bojosi. "An Opportunity Missed for Gay Rights in Botswana: Utjiwa Kanane v. The State." <http://www.law.wits.ac.za/sajhr/contents2004_3.htm> [Accessed 26 Jan. 2006]
Additional Sources Consulted
Oral sources: Representatives from the Botswana Centre for Human Rights (DITSHWANELO), the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC) and the University of Botswana did not provide information within the time constraints of this Response.
Internet sites, including: Amnesty International, Freedom House, The Gazette, International Lesbian and Gay Association, Pridenet, Q-online, Sunday Tribune, United States Department of State.