Read the Botswana judgment
Read the Kenya judgment
If I were a university teacher of language, philosophy, politics, sociology, theology or law, I would set my students an intriguing task. They would examine two judgments delivered over the last three weeks, one in Kenya and the other in Botswana, on exactly the same contentious issue but where the outcome could not have been more different.
Both courts had to consider an application which would have had the effect of setting aside sections of the relevant country’s criminal code making male gay sex a crime. In both there was a crucial added issue, namely that the legal penalties against (particularly male) homosexuals leads to discrimination and difficulties in accessing treatment and advice at health clinics.
My theoretical students might compare the language used in the two judgments, the clear judicial philosophy leading to the widely differing outcomes, not to mention the obviously disparate political thinking at play. They could also examine the sociological and even the religious premises at work in the minds of the judges and in their understanding of society. They would look at the two benches, each comprising three judges (two men and one woman in both cases), and contrast their understanding and use of the law in reaching their decisions. And, of course, they would look at the law “created” by the judges through these decisions and their likely impact.
As all readers will know by now, the Kenyan judges rejected every aspect of the application, not even acknowledging the problems that gay people experience at health clinics, while the three judges from Botswana have declared that the criminalization of male same-sex relationships is unconstitutional. In doing so, Botswana followed the direction taken earlier this year in Angola.
One of the most interesting aspects of the judgment from Botswana is that the judges accepted argument that the word “sex” in section 3 of the constitution should be “generously and purposively interpreted” so as to include “sexual orientation”. This section gives every person Botswana fundamental rights and freedoms, regardless of race, political opinion, creed or “sex”.
Judge Michael Leburu, who wrote the decision with the unanimous support of his two colleagues, said, “On the basis of the formulated rules of constitutional construction or interpretation, I have no qualms whatsoever in determining that the word ‘sex’ in Section 3 is wide enough to include and capture ‘sexual orientation’, as I hereby determine.”
The impact of this finding is significant and could well mean that the local LGBTI will have an even stronger, constitutionally-based argument for any further challenge to discrimination. It also has the effect that, thanks to judicial interpretation, Botswana’s constitution now joins that of South Africa in outlawing discrimination based on sexual orientation.
Having established that sexual orientation is an impermissible ground for discrimination, the court then found that provisions in the criminal code outlawing sexual expression between gay men amounted to “indirect discrimination founded upon sexual orientation”.
The disputed sections impaired the rights of gay men to “dignity, privacy, liberty (automony) and (were) discriminatory in effect”. The state had the onus of proving that these limitations satisfied constitutionally-sanctioned grounds of justification. In this case it meant that the state had to “identify the mischief” that was of enough importance to justify the infringement of rights. That mischief having been identified, the government via the Attorney-General had to show that the action taken was proportional to the threat.
But the AG’s affidavit provided “no scintilla or iota of justification” for the limitation. It only claimed that the disputed sections were not discriminatory, a claim the court had rejected. At best, the AG put up “bare assertions” and speculation that sexual expression between gay men was “contrary to public morality or public interest”.
Despite this inadequate response the court decided nevertheless to examine the extent to which public opinion on moral issues was relevant to constitutional adjudication, and held it was “relevant” but not "dispositive” and that criminalizing consensual same-sex activities in private, between consenting adults, was not in the public interest.
The court asked what compelling state interest could there be possibly be to make such laws necessary. “Should private places and bedrooms be manned by sheriffs to police what is happening therein?” The penal provisions punished consensual same-sex relations, between adults, in private, where there is “no conceivable victim and complainant.”
The law oppressed a minority, then targeted and marked them for an innate attribute over which they had no control, and were singularly unable to change. This last phrase, by the way, highlights another significant difference between this decision and that of the Kenyan court, where the judges were apparently impressed by evidence that gay people could be made to “change” their sexual orientation through various means.
Judge Leburu also quoted a speech made last year by the President of Botswana, Mokgweetsi Masisi, who said there were many people involved in same-sex relationships in Botswana who had been violated and who suffered in silence for fear of discrimination. “Just like other citizens,” said the President, “they deserve to have their rights protected.”
Botswana had pledged itself to be a compassionate, just and caring nation, open, democratic and accountable as well as a “moral and tolerant nation”. Such a people would not discriminate against one segment of society, but would rather embrace diversity and tolerance.
The impugned provisions were a relic of the Victorian era and were influenced by Judeo-Christian teachings that sex was only for procreation. Such a premise was clearly no longer valid, and if the rationale for a law ceased, the law ought also to cease.
In what might become the most quoted sentence of the decision, the court said, “Sodomy laws deserve archival mummification, or … a museum peg, shelf or cabinet for archival display.” By contrast, Botswana’s constitution was a dynamic, living charter of progressive rights reflecting tolerance and inclusivity, in which discrimination had no place.
“Non-consensual sexual encounters” were already criminalized through rape, indecent assault and similar penal provisions. But as far as consensual, intimate relations were concerned the state could neither police what happened in the bedroom nor “subject suspects to intrusive, inhuman and degrading medical examination” to enforce the disputed laws.
The last point is particularly important since offensive examinations of this sort are often resorted to in countries that criminalise same-sex relations.
In the period between the delivery of the two decisions, I heard a paper by an expert in constitutional law in Africa, Professor Charles Fombad. He put his finger on problems that he detects among many judges of this continent, saying they are “timorous”, conservative and unwilling to adopt a “more principled and rights-sensitive approach, using their constitutions as living documents”. Instead, he urged, judges should be “bold spirits” reflecting the progressive spirit of Africa’s constitutional reforms.
After reading these two remarkably different decisions on criminal sanctions for same-sex relations, I am left wondering whether in fact they reflect the two different judicial approaches identified by Professor Fombad.
