Last edited: February 12, 2005

Alleged Gay Challenges Homosexual Laws

Panafrican News Agency, May 3, 2001
Dakar, Somalia

Gaborone, Botswana—A man who is accused of engaging in homosexuality in Botswana has filed an application in the High Court challenging the country’s laws on unnatural sexual liaisons.

Utjijwa Kanani has gone to court to challenge certain provisions of the Botswana Penal Code, which he feels are inconsistent with the constitution of the country.

Hearing of the case is set for 31 May.

In his founding affidavit, Kanani concedes that he was found in bed with another man.

However he argues that the offence he is alleged to have committed—having unnatural sex—should no longer be the subject of criminal sanction and the sections of the constitution that bars such conduct should be declared null and void.

"I therefore pray that this court grant an order declaring that sections 164 and 167, and therefore by reference section 165, of the penal code are ultra vires to the constitution."

Kanani asserts that the penal provision preferred against him offends against the constitution and says the legislation discriminates against him by virtue of his gender.

It is Kanani’s argument that a similar conduct by females is not labeled criminal under the Botswana laws.

He feels that contrary to the constitution the charge as framed discriminates against him as a male and that it inhibits his freedom of association.

Therefore the legal sanctions against unnatural sexual liaisons offends Section 3(b) and (c) of the constitution which allows freedom of association, he argues.

The case arises out legal proceedings in 1995, which were instituted after police raided the house of Graham Norrie, a foreign national, who was found in bed with Kanani.

Norrie, who was arrested and charged with indecent conduct and having unnatural sex pleaded guilty without evidence being led in court. He was subsequently fined and deported.

However Kanani claims that he cut a deal with the police to be a witness against Norrie in the case.

But the authorities later charged him with the same offence apparently after Norrie pleaded guilty without evidence being produced in court.

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