Botswana Wrestles with Implications of Gay Case
June 13, 2001
GABORONE, BotswanaHuman rights activists in
Botswana are closely monitoring the developments of a case now before the
countrys High Court in which a man stands accused of engaging in illegal
sexual relations with another man.
Utjijwa Kanani has been brought up on two counts of "unnatural
offense" in contravention of sections 164(c) and 167 of Botswanas
penal code barring "indecent practices between males."
Kanani does not dispute the facts in the case and readily admits that he
was found in bed with another man. But he says that the laws he is alleged to
have brokenbarring what the state terms unnatural sexshould no
longer be the subject of criminal sanction.
Kanani is basing his challenge on provisions in the countrys
constitution which prohibit gender-based discrimination and guarantee freedom
of association. He says he is being prosecuted for "crimes" a woman
would not be charged with and that the law unfairly restricts his rights of
What kind of country does Botswana want to be?
According to the particulars of the case, Kanani was found in bed with
Graham Norrie, a foreign national, in 1995 after a police raid.
The human rights watch group Ditshwanelo is defending Kanani before the
high court. Attorney Duma Boko, in an interview with the Botswana newspaper
Mmegi, reasserted the charges brought against Kanani are both unconstitutional
and a violation of privacy guarantees.
"This is violation of the right of privacy between consenting
adults," Boko said. "The state has no business in regulating the
behavior of consenting adults, particularly when this is taking place in the
privacy of their rooms."
Boko further takes exception to the vagueness of the charges being brought
against Kanani. "In criminal law it should be made clear in categorical
terms what conduct constitutes an offense, as it is now this is just a broad
and vague attempt to criminalize any conduct," he said.
The defense is also angling for the courts affirmation of constitutional
reforms spurred by the decisions of the countrys judiciary. While
conservatives and the clergy are strongly opposed to repeal of the countrys
morals clauses, a decision in Kananis favor will be a major human rights
triumph in the country and in the region.
The Mmegi newspaper quotes one human rights activist as saying a favorable
ruling will move Botswana into the company of democratic and progressive
nations in Africa and elsewhere in the world. "Currently Botswana has to
make do with the unenviable position of being seen in the same league with
some dictatorial nations that still criminalize homosexuality," the
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