EG v. Attorney General
On Appeal Expands Expression
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The High Court of Botswana declared that the time was ripe to decriminalize homosexuality, thereby overturning the 2003 decision in Kanane v. S, which upheld the constitutionality of the sodomy laws. The case was brought by a gay man who challenged the Botswana Penal Code provisions that criminalized same-sex sexual intercourse on the grounds that they infringed his rights to dignity and liberty and to be free from discrimination. The Court held that sexual orientation is innate to an individual and that the criminalization of same-sex sexual conduct infringed the rights to liberty, dignity and privacy and constituted discrimination. It added that there was no public purpose in continuing the criminalization and that there was no justification for infringing upon those rights.
Letsweletse Motshidiemang, a gay Batswana man, challenged the provisions in the Botswana Penal Code which criminalized sodomy. Motshidiemang argued that the provisions meant he was “prohibited from expressing the greatest emotion of love, through the act of enjoying sexual intercourse with another consenting adult male” [para. 27].
Moshidiemang challenged sections 164, 165 and 167 of the Penal Code. Section 164 states: “Any person who – (a) has carnal knowledge of any person against the order of nature; (b) [not relevant] or (c) permits a male person to have carnal knowledge of him or her against the order of nature; is guilty of an offence and is liable to imprisonment for a term not exceeding seven years”.
Section 165 states: “Any person who attempts to commit any of the offences specified in section 164 is guilty of an offence and is liable to imprisonment term not exceeding five years”.
Section 167 states: “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”.
Motshidiemang argued that the provisions violated his rights to liberty, dignity and privacy and the right to be free from discrimination, as protected by the Constitution of Botswana. He submitted that although the offence in section 167 was gender neutral, its effect disproportionately affected him as a gay man and was therefore discriminatory in effect.
Section 3(c) of the Constitution states: “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(1) states: “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 9(2) includes a set of circumstances under which the right can be limited.
Section 15 of the Constitution states: “(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”.
Motshidiemang filed an application in the High Court of Botswana in Gabarone. The case was brought against the Attorney General as representative of the State. The High Court admitted Lesbians, Gays and Bisexuals of Botswana (LEGABIBO), an organization working towards “a tolerant social environment where diversity is appreciated,” as amicus curiae in the case [para. 14]. LEGABIBO’s objectives are to “strengthen the participation of lesbian, gay and bisexual people in the formulation of policy in Botswana, to carry out political lobbying for equal rights and decriminalisation of same sex relationships, to act on behalf of and represent lesbian, gay and bisexual people and to support public health interests by establishing an environment that enables lesbian, gay and bisexual people to protect themselves and others from violation of their basic rights” [para. 14].
Judge Leburu delivered the unanimous judgment of the High Court. The central issue before Court was whether sections 164(a) and (c), 165, and 167 of the Penal Code of Botswana unjustifiably limited Motshidiemang’s rights to liberty, dignity and privacy and were discriminatory in effect.
Motshidiemang argued that the provisions were unconstitutional because they were “not made for the peace, order and good government of Botswana” and because the lack of clarity on the specific conduct that was criminalized rendered them vague [para. 29]. In addition, he argued that his right to liberty had been infringed “by prohibiting him from using his body as he chooses and sees fit, so long as he does not cause disrespect and harm to the enjoyment of the freedoms by others” [para. 30]. He also argued that the provisions subjected him to inhuman and degrading treatment “in that they prohibited him from expressing sexual affection through the only means possible to him as a homosexual” and that they violated his right to privacy as they interfered with an “intimate and personal aspect of his life, that is not harmful to the public interest or public good” [para. 30]. He submitted that, despite being gender neutral, section 167 discriminated against him as a gay man because its effect on him was greater than on females “who have other means of enjoying penetrative sexual intercourse” [para. 31].
Motshidiemang noted that Botswana was ready to “embrace and tolerate homosexuality” because Parliament had passed the Employment (Amendment) Act which prohibited discrimination based on sexual orientation, the Botswana National Vision stated that Botswana must be a “morally tolerant” and “compassionate, just and caring” nation and the Afro-Barometer indicated that 43% of Botswanans are not opposed to homosexuality [para. 32].
LEGABIBO submitted that the provisions were discriminatory in effect even though they appeared gender neutral, and that the criminalization of same-sex sexual conduct inhibited LGBT individuals from accessing necessary medical care, making it contrary to the public interest and public health. LEGABIBO’s application was supported by an affidavit from an expert from the Gender, Health and Justice Research Unit at the University of Cape Town in South Africa. The expert highlighted the inflated levels of violence and discrimination faced by LGBT individuals when accessing health care in Botswana and that the provisions represent structural stigma (“social stigma that is institutional or made into law”) [para. 34]. LEGABIBO also highlighted that section 141 of the Penal Code concerning rape is gender neutral, thus covering non-consensual anal penetration, which made the impugned provisions redundant.
The State argued for the constitutional validity of the provisions. It stated that the provisions are not discriminatory as they apply equally to everyone, of all sexual preferences, highlighting that merely being a homosexual is not criminalized, only certain acts considered against the order of nature . On the vagueness argument, the State argued that the provisions were neither vague nor ambiguous as “sexual intercourse against the law of nature” simply meant anal penetration. In addition, the State highlighted that the enjoyment of fundamental rights is also subject to limitations as provided for the Botswana Constitution. The State maintained that the Courts should defer to Parliament to determine issues of morality as Parliament represents the people of the country.
The Court examined the history of the offence of sodomy, noting that it was introduced into Botswana during the colonial period and that many British colonies adopted the structure of the offence from the Indian Penal Code. The sodomy laws remained on the statute books when Botswana became independent in 1964. The Court then analysed how same sex intercourse has been decriminalized globally, influenced by arguments similar to those raised in this case. It noted that the “repeal of the sodomy laws was greatly influenced, in large part, by the inherent recognition of such laws as being discriminatory, invasive of personal dignity, privacy, autonomy, liberty and lastly, the absence of compelling public interest to intrude and regulate private sexual expression and intimacy between consenting adults” [para. 58].
The Court rejected the State’s argument that the matter should be decided by Parliament, referring to section 18 of the Constitution which allows any person who believes that a right is being violated to approach the courts for adjudication. The Court reiterated that the courts are “the ultimate interpreter and arbiter of our Constitution” [para. 69].
The Court emphasized that the Constitution “ought to be interpreted according to imperatives of the prevailing socio and political context” [para. 77]. With reference to the Attorney General v. Dow  BLR 119 (CA) case, the Court confirmed that it is required to have regard to international treaties, agreements and conventions and that domestic laws should be interpreted in a manner that does not conflict with Botswana’s international obligations [para. 79].
The Court rejected Motshidiemang’s argument that the provisions were vague. It accepted that section 10 of the Constitution states that “[n]o person shall be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law” [para. 89]. However, with reference to the South African case of Affordable Medicines Trust v. Minister of Health 2006 (3) SA 247 (CC) and the US case of Grayned v. City of Rockford 408 US 104 (1972) the Court stressed that the doctrine of legality “does not require absolute certainty of the laws” [para. 90]. In relying on the decisions in Botswana cases of Gaolete v. S  BLR 325 HC and Kanane v. S  (2) BLR 67 (CA), and the UK case of Black-Clawson International Ltd v. Papierwerk Waldof AG  1 ALL ER 810 (HL) the Court held that the provisions were not vague and had indeed been defined by the court.
In discussing Motshidiemang’s argument that the provisions violated his right to privacy, the Court noted that privacy “must be interpreted in the light of the current era and context” [para. 112]. It quoted Black’s Law Dictionary which stated that the right to privacy is the “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” [para 112]. The Court also referred to article 12 of the Universal Declaration of Human Rights (UDHR) and article 17 of the International Covenant on Civil and Political Rights, and to a number of other international declarations which protect the right.
With reference to the case of Ketlhaotswe v. Debswana Diamond Company (Pty) Ltd CVHGB-001160-07 the Court stressed that the constitutional right to privacy is a “multifaceted and multi-pronged” [para. 114] right, and that the constitutional protections should not be interpreted as relating only to the “protection against the search of his or her person, property, or entry by others on his/her premises” [para. 116]. The Court noted that “[s]uch a linear and face value interpretation runs foul to our cherished generous, purposive and context orientated mode of constitutional interpretation” [para. 116]. However, the Court also emphasized that the right is not absolute, but can only be limited by a law, for the purpose of protecting other rights and be reasonably justifiable in a democratic society.
By referring to the Indian case of Navtey Singh Johar v. Union of India, Ministry of Law and Justice (Writ Petition No. 76 of 2016, Supreme Court) – which struck down the sodomy laws – the Court reiterated that the right to privacy “protects the liberty of people to make certain crucial decisions regarding their well-being, without coercion, intimidation or interference, from any direction, be it governmental or otherwise” [para. 122]. It also referred to the South African case of National Coalition for Gay and Lesbian Equality v. Minister of Justice 1999 (1) SA 6 (CC) which discussed how the right protects the right to “nurture human relationships without interference from outside the community” [para. 124]. The Court mentioned two US cases: Griswold v. Connecticut 381 US.479, 85S (1965) which struck down the law prohibiting married adults using birth control on the grounds that the “sanctity and privacy of the marital bedroom” was violated and Lawrence v. Texas 539 US.558 which declared that the sodomy offence violated the right to privacy [para. 125].
The Court held that the impugned provisions in this case did infringe Motshidiemang’s right to express his sexuality in private and that he has a right to a “sphere of private intimacy and autonomy”, which is not harmful to any person [para. 127].
The Court referred to the US case of Planned Parenthood of South Eastern PA v. Casey 505 US 833 (1992) in respect of the right to liberty and emphasized that “matters of personal intimacy and choice are central and key to personal liberty and autonomy and that it is not the business of the law to choose for a person his/her intimate partner” [para. 139]. The Court noted that “[a]s a nation, there is an ardent need to respect our diversity and plurality by being tolerant to minority views and opinions” and that sexual preference must be respected. It added that “[s]exual orientation is innate to a human being … [i]t is not a fashion statement or posture” [para. 142]. The Court held that the right to liberty goes beyond freedom from physical restraint as it “includes and protects inherently private choices, free from undue influence, irrational and unjustified interference by others” [para. 143]. The Court held that Motshidiemang’s right to liberty had been “emasculated and abridged” by the provisions’ criminalization of anal penetration [para. 144].
The Court defined dignity to mean “worthy of honour and respect”, and deemed it to be a core value of the fundamental rights [para. 145]. The Court referred to the Botswana cases Attorney General v. Rammoge (unreported, delivery on 16 March 2016) and ND v. Attorney General of Botswana MAHGB-000449-15 (unreported, delivered on 29 September 2017) and the Canadian case of Law v. Canada (Minister of Employment and Immigration) 1999 (1) SCR 497, and noted articles 1, 2 and 3 of the UDHR. It held that sexual intercourse is not merely for the purposes of procreation but is an expression of love and intimacy, and that its criminalization violated Motshidiemang’s right to dignity.
The Botswana Constitution prohibits discrimination based on “sex”, and, with reference to the Canadian case of Vriend v. Alberta  1 S.C.R 493 and the UN Human Rights Committee case of Toonen v. Australia Communication No. 488/1992, the Court held that this must be interpreted to include sexual orientation. Here the Court referred to the Botswana case Moatswi v. Fencing Centre Ltd  (1) BLR 262 (IC), the South African case City Council of Pretoria v. Walker 1998 (2) SA 363, the Hong Kong case Leung v. Secretary for Justice  4 HKLRD 211 (CA) and the European Court of Human Rights (ECtHR) case Sutherland v. United Kingdom No. 25186/94. Accordingly, the Court held that the provisions “have a substantially greater impact on the applicant as a homosexual, who engages only in anal sexual penetration; than it does on heterosexual men and women” [para. 169]. It added that “[d]enying the applicant the right to sexual expression, in the only way natural and available to him, even if that way is denied to all, remains discriminatory in effect, when heterosexuals are permitted the right to sexual expression, in a way that is natural to them” [para. 169].
The Court discussed the Kanane case – which had found that the impugned provisions in this case were not unconstitutional – and stressed that the Court in that case had held that “Gay men and women do not represent a group or class which at this stage has been shown to require protection under the Constitution” [para. 104]. It also identified how the present case must be distinguished from the Kanane case: expert evidence was adduced in this matter; and the Court of Appeal in Kanane did not address the issues of privacy and dignity or whether the provisions were discriminatory in effect. With reference to the South African case Minister of Home Affairs v. Fourie  ZACC 19 the Court stressed that “[p]lurality, diversity, inclusivity and tolerance are quadrants of a mature and an enlightened democratic society” [para. 173].
Accordingly, the Court held that section 164(a) and (c) and 165 “impair the applicant’s right to dignity, privacy, liberty (autonomy) and lastly that the said provisions are discriminatory in effect” [para. 174].
Having found that there was a limitation to constitutionally-protected rights, the Court examined whether that limitation was justifiable and referred to the Canadian case of R v. Oakes (1986) 1 SCR 103. The Court stated that in the State’s affidavit “there is no scintilla or iota of justification, advanced for the derogation in question”, and that it made only bald assertions to justify the limitation [para. 179].
The Court referred to Good v. Attorney General (2) and noted that “[w]hether something is within the public interest, ultimately depends upon a host of several considerations, including, but not limited to the peace, security, stability and well-being of the people” [para. 184]. The Court noted that “[p]ublic opinion is relevant in matters of constitutional adjudication, but it is not dispositive” as “[s]uch public opinion is rendered Lilliputian by the towering and colossal human rights ‘triangle of constitutionalism’, namely; liberty, equality and dignity” [para. 185]. The Court referred to Ramantele v. Mmusi (CACGB-104-12)  BWCA 1, the South African case of S v. Makwanyane 1995 (3) SA 391 (CC) and the UK Privy Council case of Reyes v. R  UKPC II which all confirmed that although public opinion may have some relevance, it cannot replace the court’s obligation to interpret and uphold the Constitution. The Court held that “criminalising consensual same sex in private, between adults is not in the public interest” as the provisions “exceed the proper ambit and function of criminal law … where there is no conceivable victim and complainant” [para. 189]. It found that “[a]ny notion of public morality justification (which is a question of prejudice), fails to satisfy the proportionality test” [para. 189]. The Court held that the provisions “do not serve any useful public purpose” and that “the means used to impair the right or freedoms … are more than is necessary to accomplish the enforcement of public morality or objective” [para. 207].
The Court found that the provisions “oppress a minority and then target and mark them for an innate attribute that they have no control over and which they are singularly unable to change” [para. 190]. It added that “[c]onsensual sex conduct, per anus, in my view, is merely a variety of human sexuality” [para. 190]. It held that there is “nothing reasonable and justifiable by discriminating against fellow members of our diversified society” [para. 191]. The Court stressed that as legislation reflects the people’s will and because discrimination on grounds of sexual orientation was prohibited under the Employment (Amendment) Act the people had spoken on the need to protect LGBT rights.
Directly responding to the Kanane decision which had said that the time had not yet arrived to decriminalize same-sex sexual practices, the Court stated that “time has come that private same sexual intimacy between adults must be decriminalised” [para. 202]. The Court referred to the Zimbabwean case Banana v. S 1998 (1) ZLR 309 (S), the Belize case Orozco v. Attorney General of Belize AD 2016, Claim No. 668/2010 and the ECtHR cases of Norris v. Ireland (1989) 13 ECHR 186, Modinos v. Cyprus (1993) 16 ECHR 485.
The Court noted that sodomy provisions “are a relic of Victorian era and were influenced by Judeo-Christian teachings” and that the premise that the sole purpose of sexual intercourse was for procreation “is no longer valid and sustainable” [para. 208]. With reference to Miliangos v. George Frank (Textiles) Ltd  AC 445, the Court stressed that once the reason for a law has ceased, the law itself must also cease. The Court also pointed out that there existed other provisions in the penal code which criminalized non-consensual sexual acts and acts of indecency done in public – such as those which criminalize indecent practices in practice, rape, indecent assault and defilement. Accordingly, there existed no need for criminalizing consensual same-sex sexual intercourse in private.
The Court held that it was entitled to sever “private” from the conduct prohibited by section 167 on the grounds that the “regulation of conduct deemed indecent, done in private between consenting adults, is a violation of the constitutional right to privacy and liberty” [para. 223].
Consequently, the court deemed sections 164(a) and (c), and 165 of the Penal Code to be unconstitutional and ordered the word “private” to be removed from section 167. This was on the grounds that the provisions violated the right to liberty, privacy and dignity under section 3, privacy under section 9 and were discriminatory in violation of section 15.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In decriminalizing same-sex sexual conduct, the High Court in Botswana delivered an important judgment confirming the rights of individuals to express sexual preference and give effect to their sexual orientation through sexual conduct. The judgment engages in thorough comparative analysis of how criminalizing sexual conduct infringes an individual’s rights and confirms that sodomy offences cannot exist alongside a Constitution protecting the rights to dignity, liberty and privacy.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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