Last edited: February 12, 2005

Botswana Wrestles with Implications of Gay Case

Datalounge, June 13, 2001

GABORONE, Botswana—Human rights activists in Botswana are closely monitoring the developments of a case now before the country’s 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 Botswana’s 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 broken—barring what the state terms unnatural sex—should no longer be the subject of criminal sanction.

Kanani is basing his challenge on provisions in the country’s 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 free association.

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 court’s affirmation of constitutional reforms spurred by the decisions of the country’s judiciary. While conservatives and the clergy are strongly opposed to repeal of the country’s morals clauses, a decision in Kanani’s 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 activist said.

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