The Botswana Network on Ethics Law & HIV/AIDS (BONELA) has reacted with anger at the conviction and sentencing of its client for sleeping with another man. He has been found guilty of violating section 164 of the Penal Code of Botswana and sentenced by a Gaborone Magistrate Court to three and half years, two of which have been suspended for three years. “When the matter started our client was charged with an offence of having had unlawful carnal knowledge with another man without his consent. This charge was unexpectedly altered to that of him having had carnal knowledge with another man contrary to section 164 of the Penal Code. The last charge criminalises same sex acts for being unnatural,” said BONELA in a statement.
BONELA has always held the position that section 164 of the Penal Code should not be part of the laws of Botswana for several reasons. “Among others, section 164 of the Penal Code is unconstitutional as it discriminates against homosexual people; non-discrimination being a fundamental right to be enjoyed by all under the constitution. This was reiterated in the recently delivered LEGABIBO registration case that ‘nothing could be plainer and that there are no exclusions whatever,’” said BONELA. Cindy Kelemi, the Executive Director of BONELA stated that over and above the foregoing they are of the strong view that this discriminatory law fuels stigma faced by homosexual people, perpetuating their unequal treatment which also has adverse consequences on the country’s response to HIV/AIDS.
“We can attest to this aspect as for a very long time our client would not let the attorneys engaged by BONELA challenge the constitutionality of this section from the onset for fear of stigma,” said the organisation. The Coordinator of LEGABIBO Anna Chalmers stated that this current conviction is testimony that despite assurances by the leadership of Former President Festus Mogae guaranteeing that there will be no persecution of people on the basis of their sexual orientation, the State has gone against its word. BONELA’s Policy and Legal Advisor Phazha Molebatsi stated that the client has given the organisation the mandate to take the matter on appeal against conviction and sentence in line with the organisation’s strategic objective of ensuring access to justice for vulnerable and marginalised populations including men who have sex with men.