“The Tide has Turned” – Botswana Court of Appeal Upholds the Decriminalisation of Same-Sex Relations

Karan Gupta

Editors’ note: this is a slightly modified version of a post that was originally published on the Indian Constitutional Law and Philosophy blog, on 1 December 2021.

Earlier this week, a full Bench of the Botswana Court of Appeals (CoA) in Attorney General v Letsweletse Motshidiemang partly upheld the High Court’s (HC) judgment (analysed here) which decriminalised same-sex relations. Commending the ‘erudite’ and ‘searching’ judgment of the HC, the judgment inducts Botswana into a group of countries such as India (here), and Angola (here) which have recently struck down similar provisions criminalising same-sex relations and away from the judgments recently issued by the High Courts of Kenya (here and here) and Singapore (here). In so doing, the CoA affirmed the equal moral membership under the Botswana Constitution of individuals who identify with same-sex relations. The judgment is commendable for its careful navigation of the arguments raised, which I explore, in seriatim.

Setting the context

The case concerned criminal provisions germane across former British colonies. The impugned provisions of the Penal Code 1964 [Sections 164(a); 164(c)] criminalised relations ‘against the order of nature’ which had been judicially interpreted to outlaw same-sex anal intercourse. Both sides presented now familiar arguments in cases concerning the decriminalisation of same-sex relations. The appellant (Botswana Government) argued that the provisions were not enforced, were gender-neutral (and was hence not discriminatory), prohibited only certain sexual acts limited to anal intercourse and did not cause or perpetuate prejudice, stigma and oppression. The Respondents (and the Amicus  – Legabibo) urged that though the provisions were gender neutral, the effect was discriminatory in singling out same-sex relations for criminalisation, they violated the fundamental rights to liberty, dignity, privacy and equality before the law, did not constitute permissible restrictions of these fundamental rights, and amounted to discrimination on the basis of sex.

Section 3 of the Botswana Constitution guarantees to every person in the Country (whatever their ‘sex’), the fundamental right to life, liberty, security and privacy of their home and property. Section 7 guarantees that no individual shall be subjected to torture or to inhuman or degrading punishment or other treatment. Section 15 stipulates the fundamental right against discrimination on enumerated grounds (including ‘sex’). Though arguments were urged before the High Court of Section 7, the CoA restricted itself to the other fundamental rights on the basis that no finding was returned by the High Court on the provision, nor was any appeal filed on this ground (paragraphs 8, 10)

At the arguments before the CoA, the appellant restricted its arguments to three principal grounds (35, 110): First, that the High Court ignored stare decisis in that it was bound by the 2003 CoA decision in Kanane, where a constitutional challenge to the same provisions was squarely rejected (22, 37); Second, a change in law is essentially a policy matter within the exclusive domain of the democratically elected legislation. Any adjudication amounts to impermissible judicial law-making (10, 74); and Third, the High Court erred in failing to apply Section 15(9) – a ‘saving’ constitutional provision which preserved and protected from discrimination-scrutiny statutory provisions which existed at the time the Constitution came into force (35, 36, 91). Consequently, the CoA dedicates a significant part of its judgment addressing these arguments.

Kanane and the tides of change

In Kanane, the CoA rejected a constitutional challenge based on Section 3 and 15 of the Constitution to the impugned provisions. The High Court distinguished the CoA decision in Kanane on the ground that the judgment delivered in 2003 had explicitly noted that Botswana was not then ready for the decriminalisation of same-sex relations. The CoA, on a careful reading of its earlier decision, agrees with the High Court (57). As such, the constitutional findings in Kanane were not categorical, but conditional i.e., the CoA in Kanane, though supportive of the ‘rights of the gay community’ (64), had expressly stated that “the time had not yet arrived” to strike down the provision “at this stage”. Thus, there was no need to distinguish a case, which had left open a window for future evidence to be lead which may point to a different conclusion (55-58). As for the evidence, the CoA reproduces and notes that judicial opinions and public opinion (including statements by Heads of State) since 2003 reflected a ‘progressive change’ (62) which indicated that the ‘tide has turned’ (65). Given the ‘adequate evidence of the change of attitude’, ‘sex’ in Sections 3 and 15(3) was held to include ‘sexual orientation’ as well as gender identity. Consequently, the CoA holds that the HC’s judgment under appeal reflected a logical progression (71) and did not contravene the principles of stare decisis.

The holding of the CoA on this count is broadly in line with the constitutional interpretive technique in Botswana committed to living-tree constitutionalism. Broadly speaking, this asserts that constitutions do not reflect stable and fixed pre-commitments and legitimate constitutional interpretation involves development and change in constitutional law through interpretation by judges, in a manner keeping it abreast of changes in society, politics, culture and legal systems. The CoA had earlier affirmed in Attorney General v Dow (1992) that the Constitution is not a “lifeless museum piece” but a living constitution which should “meet the just demands and aspirations of an ever-developing society”. Similarly, the High Court below had held that the “living and dynamic charter of progressive human rights, serving the past, the here and now, as well as the unborn constitutional subjects.” (HC, 76).

Interestingly however, whilst the doctrine is often employed to interpret constitutional provisions in their application to circumstances unforeseen/unimaginable to the drafters (for instance, privacy in an emerging digital age), the CoA employs it to interpret the substance of constitutional rights on the basis of changing public opinion. Such approach beckons obvious caution – public opinion, is by its very nature, in a state of flux and influenced by majoritarian tendencies. Constitutional principles cannot be subject to the vicissitudes of public opinion. The CoA, in then recognising that public opinion cannot on its own be grounds for striking down provisions (66), finds support for its conclusion in the ‘proper independent evidence’ which to it demonstrates the effect of such provisions – the perpetuation of stigma and exclusion, which undermines the constitutionally guaranteed rights to liberty, privacy, dignity and the equal protection of law (67). To distinguish its earlier holding in Kanane, the CoA is pushed to build on the window left open by it. Despite this, it carefully reiterates common-place principles of constitutionalism – that it is rights-violation and not public opinion which invites judicial review.

Separation of Powers and democracy deficit

Perhaps the most interesting observations are in CoA’s rejection of the Government’s argument that the separation of powers reserves to the legislature exclusive power in matters of policy. It is the sole prerogative of a democratically elected legislature, it was argued, to amend or repeal the impugned provisions.  The CoA decisively rejects this and holds that policy matters, though within the domain of the legislature, are tested against the anvil of constitutional provisions and principles (86, 90). Where fundamental rights are breached, it is the role and responsibility of courts to ‘tweak’ the meaning of legislation to bring it in line with the Constitution (81, 83). So far as constitutional principles go, this is now fairly well-settled. It is the observations thereafter that are significant in inviting attention to political processes and judicial review.

The CoA effectively observes that that political process by which legislation is enacted is often tainted by the will of the majority and may not be suited for the protection of minorities (82). It observes:

“82…the views and concerns of individuals, or of minority or marginalised groups will carry as little weight as their voting power dictates”

“88. It is most unlikely that the popular majority as represented by its elected members of Parliament, will have any inclination to legislate for the interests of vulnerable individuals or minorities, so the framers, in their wisdom, allocated the task and duty to the judiciary.”

These observations are significant. In recognising that legislative reform may take two distinct paths (one through the democratic mandate of the elected parliament, and second, through judicial review of legislation by courts in a bid to protect minority rights (89)), the CoA squarely positions itself to give effect to the constitutional guarantee of equality by addressing and remedying majoritarian democratic deficit in legislative and political processes. Where elected legislatures may represent majoritarian desires, the political process is ill-suited for the protection of certain identities and minorities. To argue then that the protection of identities and minorities is a policy matter within the domain of the elected legislature alone, is to subject such protection to purely majoritarian impulses and insulate it from principles of equality enshrined in the Constitution.

Recall here a similar observation in the infamous ‘fn 4’ in United States v Caroline Products by the Supreme Court of the United States. Justice Stone noted that a more ‘searching judicial enquiry’ (which was later interpreted to mean strict scrutiny)may be required where prejudice against minorities curtail the operation of the very political process relied upon for their protection. In such cases, it is futile to assert that the judiciary has no role whatsoever. In making the above observations, the CoA sets up a normative defense of judicial review of legislation which arises from a specific role attributed to it – a role informed by the equality guarantee in the constitution. In rejecting the Government’s contention, the CoA affirms that constitutional values prevail over majoritarian politics.

Section 15(9) and the ghost of a colonial past

The Government argued that the Penal Code 1964 was promulgated prior to the coming into force of the 1966 Constitution. Section 15(9), a saving clause, insulated from challenge these laws against discrimination claims arising from Section 15. The CoA recognises that these statutes are ‘legislation for the people, not by the people (93), and noted that this form was common to former British Colonies.

The CoA notes that whilst the Botswana judiciary has frowned upon blanket insulation of these laws from constitutional scrutiny, two reasons peculiar to the impugned provisions are grounds to reject the arguments – first, prior to rape laws being made gender-neutral to include men as potential victims/survivors, the impugned provisions protected men and boys from the act (101). Thus, the ‘public interest’ role earlier served by the impugned provisions was subsumed by virtue of the amendments to the rape law. What remained then was ‘ancient biblical condemnations’; second, the saving clause protected laws vis-à-vis the discrimination scrutiny at a time when neither sex nor sexual orientation were its part. (103). Given their inclusion, the impugned provisions are not protected by Section 15(9). The CoA rightly notes that where legal provisions derogates from fundamental rights, the saving clause must be accorded a restricted and narrow interpretation (103, 108). Consequently, Section 15(9) could not be read to protect from scrutiny the impugned provisions.

Privacy beyond a closet (spatial sense)

As the arguments urged orally were restricted to three grounds, the CoA briefly marks its agreement with the High Court’s reasoning on liberty, privacy and dignity vis-à-vis Sections 3 and 15 (110). Here however, the judgment is worthy of commendation for another reason. Despite its short approval of the observation by the HC, it rightly sets an expansive idea of privacy by noting that the ‘full scope and reach’ of the constitutionally guaranteed right is not restricted to a spatial sense, but extends to personal choices (112). What this means is that the right to privacy is not limited to the private confines of the bedroom, but more broadly to decisional autonomy.

This is crucial because as I have argued before, provisions such as those impugned do not criminalise specific acts, but a set of identities.  Many times, the HC errs in reducing the right to privacy to a spatial sense in its constitutional scrutiny of the impugned provisions (HC, 3, 126, 127, 189, 214, 215, 223. “Should private places and bedrooms be manned by sheriffs to police what is happening therein”). This is because the HC also reduces sexual orientation from an identity to merely a sexual act (HC, 144, 151, 164, 169, 206. “…only mode of sexual expression is anal penetration”). Though the CoA falls to a similar reduction occasionally (7, 15, 54), the brief observations on privacy towards the end rightly set the ground for a more expansive jurisprudence which could argue that the public assertion of identities by those who identify with same sex relations are just as crucial to ensuring the equal moral membership of these individuals. Recall here that the move from acts to identities and from private (spatial) to private (decisional autonomy) animated the entire judgment of Justice DY Chandrachud in Navtej. Though the CoA sometimes falls to the trap of brief in these observations, the observations of CoA are bound to progressively inform and influence the development of jurisprudence in Botswana.

Conclusion

In carefully navigating the arguments urged by the Government as well as its previous decision in Kanane, the CoA explicitly recognises the stigma, prejudice, vulnerability and exclusion faced by same-sex relation individuals by relying on expert evidence filed by the Amicus as well as studies authored by the Botswana government itself (15-17). It calls to attention the fear of arrest and the exclusion from access to public health facilities. Crucially, it notes that such sitgmatisation persists ‘at all levels of society’ which will continue even after the striking down of the impugned provisions (16). In so doing, the CoA signals that ensuring the equal moral membership of these individuals is not restricted to circumscribing state action alone, but must be informed by a broader cultural permeation of constitutional rights in the horizontal and inter-personal relations between individuals. The recognition of this aspect rightly brings to attention that judicial intervention is but a first step towards ensuring equality, not conceptualised merely as the absence of legal barriers but as creating an environment sans social barriers as well in which these identifies can foster, thrive, and be afforded the guarantees enshrined in the Constitution. In political theory that is oft-dominated by the jurisprudence of western courts and authors, the judgment of the CoA promises to ring loud. The judgment is worthy of commendation.

Karan Gupta is a Bangalore-based advocate. All views are personal.

 Suggested Citation: Karan Gupta, ‘“The tide has turned” – Botswana Court of Appeal upholds the decriminalisation of same-sex relations’, IACL-AIDC Blog (14 December 2021) https://blog-iacl-aidc.org/2021-posts/2021/12/14/the-tide-has-turned-botswana-court-of-appeal-upholds-the-decriminalisation-of-same-sex-relations.