Monday, June 24, 2019 12:16 pm
By Femi Taiwo
On June 11, this year, the Lobatse High Court in Gaborone, Botswana’s capital, returned a verdict in an appeal case that reverberated beyond the country’s borders. The case had been wending its way through the Botswana legal system for, at least, five years. The most recent significant step towards the resolution this year was taken in November 2017 when “21-year-old University of Botswana student, Letsweletse Motshidiemang filed papers in the Lobatse High Court challenging the constitutionality of Section[s] 164 (a) and 167 of the Penal Code, which criminalise homosexuality.
In his application filed before Justice Leburu of Lobatse High Court, Motshidiemang says the sections in question interfere with his fundamental right to liberty, as well as his right to use his body as he sees fit, which includes expressing his sexual affection through the only means available to him as a homosexual. Motshidiemang says he has a right to equal protection of law and the right not to be subjected to inhuman or degrading treatment.” He was joined in the fight by “gay rights lobby group, the Lesbians, Gays and Bisexuals of Botswana (LEGABIGO)” which was admitted as “a friend of the court”.
He submitted three grounds for his appeal: the law interferes with his fundamental right (1) “not to be discriminated against irrespective of his sexual orientation”; (2) “not to be subjected to inhuman and degrading treatment or other such treatment”; (3) “the law violates my fundamental right and freedom to privacy in that it interferes with an intimate and personal aspect of my life that causes no disrespect to the rights and freedoms of others and also causes no harm to the public’. These rights, he insisted, were not trumped by arguments that “Batswana do not accept homosexuality.” [Goitsemodimo Kaelo, “Fresh bid to decriminalize homosexuality”, http://www.mmegi.bw/index.php?aid=72831&dir=2017/november/02. Accessed June 21, 2019.]
A unanimous court led by Justice Michael Leburu found for the appellant and declared that the laws criminalizing gay sex in Botswana are, indeed, unconstitutional and, therefore, null and void, and of no effect whatsoever.
What is the connection between this radical shift and the title of this article? As I shall argue presently, by this decision, Botswana joins a small coterie of African countries that have decriminalized homosexuality in them; the rest are Angola in January 2019, Seychelles in June 2016, Mozambique in June 2015 and Sao Tome and Principe, and Lesotho in 2012. Of course, South Africa remains the sole jurisdiction where same-sex marriage is legal. So, we are talking of an absolute minority of African jurisdictions where it is not a crime to love another of the same sex. Even if we are talking in general terms, we would ordinarily say that homophobia is the norm in Africa and acceptance of homosexuality is the deviant instance there. By this decision, Botswana joined the ranks of the deviants in Africa.
There is a more fundamental sense, though, the one that has prompted our contribution, in which we can literally say that Botswana stopped being an African country by its decriminalization of homosexuality.
Anyone who has been following the debates over homosexuality in Africa knows that one of the stoutest defences of homophobia across the continent turns on the claim that homosexuality is alien to African culture; that it is unAfrican. There are two serious problems with this affirmation of African culture.
First, the African culture in the name of which homophobia is enthusiastically embraced is traced back to the Adam and Eve story in the Bible. There would have been no problem with this defence if the same Africans would not, simultaneously, routinely insist that Christianity is not an endogenous African religion. Here is the problem. If exogenous Christianity could, over time, become authentically African such that Africans are ready to deny human dignity in its name, and the principal knock against homosexuality is its non-African provenance, it does stand to reason that nothing in its nature makes it forever impossible for homosexuality, too, to become, like Christianity before it, just as African. That is, if Christianity could become African with time, why can’t homosexuality? Of course, that is assuming that homosexuality is, like Christianity, an acquired taste which it is decidedly not.
Africans would not be deterred, though. This brings us to the second problem with the defence of homophobia due to its alienness to African culture. When one blocks the “Christianity is our culture” line of defence, the insistence on African culture, without qualification, comes to the fore. Let us for a moment ignore the implausibility of a single or common or widespread—call it what you will—culture in a continent made up of numerous nationalities marked by differing degrees of material and ideological development, now organized into state systems behind whose respective boundaries cultural evolution has unfolded along divergent paths, however we look at it.
African scholars have imbibed too much of the poison concocted by colonial anthropology and, as a result, in the main, tend to believe or at least speak and write as if they believe that the African culture they are wont to defend is impervious to the permanence of change. Either that or they believe that, unlike culture the world over, African culture undergoes change that is so glacial it is almost imperceptible.
This is where, in their grounds for declaring the law against gay sex a constitutional nullity, the judges of Botswana’s high court went for the jugular of the pat defence of homophobia based purely on cultural identity.
There are two crucial ways they did this. Good students of history that they are, the Botswana judges did not make inquiries into the cultural provenance of the law that criminalizes gay sex in their jurisdiction. They recognized that the law was imposed by British colonialists when they ruled the country. Given that the successors of the British rulers who had imposed the law on Botswana have, in their own country, seen the light respecting the illogic of their prejudices against, and ignorance concerning homosexuality and put an end to it, unless there wee additional reasons for upholding the law in Botswana, it had to be and it was duly struck down. In other words, homophobia had historical roots; its overthrow cannot be indifferent to that history.
Doubtless, the Botswana judges could have followed the dubious example of their fellow Africans on the Kenyan bench by upholding the law based on homosexuality’s incompatibility with, you guessed it, African culture. This is most likely the more ground–shattering blow delivered by Justice Leboru and his colleagues to the law legitimizing homophobia in their country. There is no reason to think that Botswana’s judges may not have given a thought to the matter of culture. Indeed, according to the reporting from the country, the state, however feebly, did “when the case came to court in March, when the ruling was postponed until Tuesday [June 11], the lawyer for the state challenged those bringing the case to provide concrete evidence attitudes in conservative Botswana, where Christianity is the main religion, had changed.” [https://www.latestlaws.com/international-news/high-court-of-botswana-decriminalized-homosexuality/. Accessed June 21, 2019.]
Remember, every culture has at its core, an idea of what it is to be human and what forbearances would be extended to those adjudged to be a part of that domain of the human. And in the modern age, wherever and whenever an entity is admitted to that kingdom of the human, the dignity attached to same is inviolate and state and civil society institutions alike make it their business to protect this entity from violations of this dignity. Whether it is the United Kingdom, Ecuador or Taiwan, all societies that, for long, violated the dignity of their gay compatriots have seen the light and decided that that culture that legitimated such attitudes in the past deserved to be changed, if not abrogated.
Botswana judges, too, decided that even if Botswana culture frowned on homosexuality, the dignity of Botswana’s gay citizens was more important than the dim lights of the culture. In other words, human dignity is not culture-bound, has no cultural byline, and one ought to exit that culture that is unable to accommodate within its conception of what it is to be human the right to be a gay human.
The Africa that stomps the dignity of gay humans within its cultural boundaries lost Botswana as a member and it should be good riddance to that Africa! “‘Human dignity is harmed when minority groups are marginalised,’ Justice Michael Leburu said as he delivered the judgment. ‘Sexual orientation is not a fashion statement. It is an important attribute of one’s personality’.” [Jason Burke, “Botswana Judges Rule Laws Criminalising Gay Sex Are Unconstitutional”, https://www.theguardian.com/world/2019/jun/11/botswana-high-court-decriminalises-gay-sex. Accessed June 22, 2019] [See also, “Quotable Quotes”, from the judgment, http://www.mmegi.bw/index.php?aid=81340&dir=2019/june/14.]
Africa and Africans need to be reminded that it is one continent that should be most seized by the idea of human dignity given its sordid history of victimization of its denizens by others. Africans should always be less eager to choose the African over the human, a lesson that some of our brightest intellectuals, especially Leopold Sédar Senghor, Frantz Fanon, and Amilcar Cabral, to name a few, insistently asked us to do. In always embracing the human lies the best evidence that we have learned our lesson from ever participating in the widespread denial of the humanity of their fellows that our forebears sold to unknown fates in unknown lands for centuries the consequences of which blunders continue to haunt our present.
I salute the Botswana people for having the courage to prefer to be human to being a diminution—African.
Olúfẹ́mi Táíwò teaches at the Africana Studies and Research Center, Cornell University, Ithaca, NY, U.S.A.