A 21 year old student at the University of Botswana (UB) reading English and African Languages and Literature who dreams of one day being a teacher is taking the Botswana Government to court to challenge the constitutionality of legal provisions stigmatizing same sex relationships.
“Being a homosexual is not something new in my life, it is something, that I have learnt to live with growing up since the age of ten (10),” said Letsweletse Motshidiemang, a Kalanga boy from Mathangwane village in the northern parts of the country says in his affidavit.
He said, “I am in a sexually intimate relationship with a man. I have no doubt that this will be the case for the rest of my life. My friends, roommates at the University of Botswana have accepted me, even at the University of Botswana I feel free and accepted.”
Motshidiemang avers that section 164(a) and/or (c) and section 167 of the Penal code violate his fundmanetal rights and freedom of liberty because they prohibit him from using his body as he chooses even though he is causing no harm to the public.
Section 164 and 167 criminalizes homosexuality saying, “Any person who (a) has carnal knowledge of any person against the order of nature; (b) has carnal knowledge of an animal; or (c) permits any other person to have carnal knowledge of him or her against the order of nature is liable to imprisonment for a term not exceeding five years.
“By virtue of one or more of these provisions of the law, I am prohibited from expressing the greatest emotion of love through the act of enjoying sexual intercourse with another consenting adult male that I am sexually attracted to and who is also sexually attracted to me, as consenting adults,” said Motshidiemang.
Motshidiemang maintains that the public and Batswana have become more tolerant of homosexuals citing that members of parliament approved employment legislation saying Batswana should not be discriminated against based on sexual on sexual orientation.
Amongst supporters of gay rights in Botswana cited include opposition leader Duma Boko, Member of Parliament (MP) Botlogile Tshireletso and an Afrobarometer study showing that 43% of young people support the decriminalisation of homosexuality.
“Although stigma can be attributed to various factors, including societal attitudes toward homosexuality, it cannot be doubted that criminalizing consensual same sex sexual conduct is a form of stigma which is degrading and invasive,” said Maithamako Anna Mmolai-Chalmers, Chief Executive Officer of Lesbians, Gays and Bi-Sexuals in Botswana (Legabibo).
She said, “Our research has indicated that the high levels of stigma experienced by LGBT persons increase their vulnerability to negative health and other human rights concerns. Moreover, the stigma and laws criminalizing consensual same sex sexual conduct pushes them further away from important information regarding their sexual health needs and care.”
According to LEGABIBO despite the high levels of infection of HIV/AIDS, studies indicate only 44% of key affected populations in Botswana such as men who have sex with men have been reached.
They also point to research conducted by Ministry of Health Behavioural and Biological Surveillance Survey (BBSS) in 2012 show that HIV prevalence amongst men who have sex with men is 13.1%. HIV incidence amongst MSM is 3.6% whereas amongst the population it is 1.35%.
The BBSS study found that 65.1% of men who have sex with men were not aware that anal sex has a higher risk of HIV transmission than vaginal sex and only 26.2% had received information on anal sex in the past year. Alexander Muller, Associate Professor of Gender, Health and Justice Research Unit in the Department of Psychology at the University of Cape Town says levels of mental health issues, suicidal behaviour and substance abuse amongst lesbian, gay, bisexual, transgender and intersex people living in Botswana are higher than amongst the general population.
“The disparities in mental health status, at least in part, due to minority stress linked to stigma, prejudice and discrimination based on sexual orientation and gender identity,” said Muller.
Until 1973, the American Psychological Association considered same sex orientation, attraction and behaviour to be a mental illness. It is now recognized that what is considered a mental illness depends on what society and scientists at a certain time and in a certain context agree to be abnormal behaviours, cognitions and emotions.
The World Health Organization (WHO) only removed same sex orientation from its international classification of diseases list in 1993. The Attorney General is however challenging efforts to decriminalize same sex relationships arguing that it is not discriminatory.
“Further the Fundamental rights are subject to limitation. Much like we all have the right to freedom of expression this does not allow one to walk into a burning theatre and yell fire,” said Morulaganyi Chamme, Acting Attorney General.
The case is expected to come before the courts for trial in May 2018.
