No Same-Sex Marriage Yet
Mpho Mokwape | Tuesday December 7, 2021 06:00
Though the recent outcome on same-sex conduct has become legal as confirmed by the highest court in the land with the State subsequently succumbing to the defeat, the progressive law does not mean that now the LGBTQI community is free to marry as their counterparts do as part of their freedoms.
The decriminalisation of same-sex conduct should not be confused with the legalisation of gay marriages. As outlined in the judgement, this victory was for same-sex conduct, not gay marriage, as that is an entirely different ballgame. For gay marriage to be legal it means there has to be a challenge against the Marriage Act that is in place today, which currently does not recognise gay marriages.
According to human rights lawyer, Tshiamo Rantao and a legal representative for the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO), the judgement only dealt with the aspects of same-sex conduct and did not apply to gay marriage.
In an interview, Rantao said people should not be confused as to what the judgement meant but that the issue of gay marriages was likely to arise in future as the judgement has opened that door.
“The judgement dealt only with the criminalisation of same-sex conduct. The issue of gay marriages is an issue which will most likely arise in future, and if it does so this judgement and other recent judgements affirming human rights might be relevant then,” he said.
Rantao explained that it would take another fight for gay marriages to be legal and that the recent judgement was a step in the right direction since LGBTQI rights are not only national but universal.
He said if any nation recognises the universal rights of a certain minority group then their rights should be in total and at par with the rights of any other group that there should be no limitations.
“Human rights are universal therefore the global significance. The offensive provisions of the Penal Code have long been struck down by the High Court and so same-sex conduct has not been criminal since then. This has opened new avenues for conversations to be heard regarding gay rights in total,” he said.
Meanwhile, the gay community in the country has been becoming more visible and acceptance has improved.
Just like the courts noted in the judgement that in the Kanane case where a man was charged with sodomy, the 13 years that followed his case many indications of softening attitude towards homosexuality have emerged, thus justifying a change of approach as anticipated as a future possibility.
The LGBTQI community will be hoping that future possibilities may also include a change of law and acceptance of society towards gay marriages.
Also what could be a cornerstone in gay marriage arguments is that the court also touched base on the fundamental rights of all explaining that it extended to the protection of the right to make personal choices about one’s lifestyle, choice of partner or intimate relationships amongst others without interference.
“The right to privacy should not ignore the fundamental right being ‘security of the person’. That right applying the Dow principle of generous and expansive interpretation of fundamental rights provisions is a multi-faceted right. It goes beyond the concept of a man’s home being, it extends beyond that,” read the judgement.
As Botswana joins other nations that fully recognise gay rights, it is important to note that the country is a party to many international rights such as the Universal Declaration of Human Rights of the United Nations, and the International Covenant on Civil and Political Rights therefore the need to need to uphold its laws as expected.