|Click here for a summary of Botswana’s review at the first cycle and/or the third cycle.|
15th UPR session
Date of review: 23 January 2013
Date of report adoption: 6 June 2013
Working Group report: A/HRC/23/7
SOGIESC issues during Botswana’s 2nd UPR review
I. Key issues/recommendations identified by NGOs
- Bring the Penal Code into conformity with the Constitution by providing protection against all forms of discrimination;
- Include sexual orientation and gender identity as grounds for protection in anti-discrimination legislation;
- Legally recognise the self-defined gender identity of all persons without infringement on other rights;
- Provide education and sensitivity training on sexual orientation and gender identity for the judiciary and all other law enforcement officials;
- Take measures to ensure the rights to peacefully organise, associate, assemble and advocate around issues of sexual orientation and gender identity, and to obtain legal recognition for such associations and grounds, without discrimination on the basis of sexual orientation or gender identity;
- Review the report of the UN High Commissioner for Human Rights on sexual orientation and gender identity, and give consideration to implementing the recommendations therein.
II. Excerpts from input reports
There were no references to sexual orientation or gender identity.
Compilation of UN information
There were no references to sexual orientation or gender identity.
Summary of stakeholder information
C. Implementation of international human rights obligations, taking into account applicable international humanitarian law
4. Right to privacy
24. CHRI [Commonwealth Human Rights Institute] stated that Article 164 of Botswana’s penal code criminalized any person who has “carnal knowledge” of another which is “against the order of nature”, while Article 167 criminalized gross indecency committed in public or in private. CHRI stated that a 2003 court judgment affirmed that these provisions effectively prohibited same-sex relations and was applicable to lesbian sexual activity. CHRI made recommendations including the repealing of articles 164 and 167 of the penal code.
25. CHRI stated that the criminalization of same-sex conduct was incompatible with Botswana’s obligations under articles 17 and 26 of the International Covenant on Civil and Political Rights. It added that statements made by political leaders were at odds with these obligations. Also, religious leaders fuelled discrimination and homophobia. In this regard, CHRI stated that The Evangelical Fellowship of Botswana published a statement in a national newspaper condemning the actions of civil society that advocated for the decriminalisation of homosexuality.
26. JS 1 [The Botswana Centre for Human Rights, The Botswana Council of NGOs, LEGABIBO and Rainbow Identity] stated that transgendered persons experienced difficulties in obtaining documents reflecting their changed gender identity following transition from one gender to another. While the changing of one’s name was permissible under the law, there was no legislation specifically addressing a change of identity.
27. JS 1 stated that transsexual applicants were required to submit to the court, a medical report concerning their sexual identity. This report must be approved by the Ministry of Health. The ignorance of civil servants and members of the judiciary about transgendered persons resulted in the process being unnecessarily prolonged.
III. References to SOGI during the Working Group review
Interactive dialogue and responses by the State under review (from the working group report)
45. The United Kingdom of Great Britain and Northern Ireland took note of the positive progress with regard to children’s rights, prison conditions and HIV/AIDS awareness. It expressed disappointment with the criminalization of homosexuality. Closer attention should be given women’s rights. It made recommendations.
90. In response to the questions raised from the floor, the delegation [of Botswana] stated that the Constitution is the supreme law of the land. Cultural practices that are deemed to be inconsistent with the Constitution would not prevail, if challenged.
91. Furthermore, the delegation stated that, as a predominantly Christian nation, Botswana has not reached a stage where it can accept same-sex activities. It would be necessary to engage in educational campaigns on this issue so that when the laws are changed, the people are carried along.
92. Regarding cultural sensitivities that have a bearing on existing legislation, the delegation confirmed Botswana’s commitment to comply with its treaty obligations. In this regard, the Government was determined to undertake educational awareness campaigns with a view to bring up these issues, including sexual orientation, corporal punishment and death penalty. Thus far, public consultations have confirmed that Batswana still support the retention of corporal punishment, death penalty and the criminalization of same sex activities.
97. Netherlands commended Botswana on progress made since the 1st UPR cycle, but noted that challenges remained, including discrimination and violence against women and girls and the LGBT community and criminalization of same sex activities. It noted that Botswana considered education to be the key to changing culturally-rooted prejudices. Netherlands made recommendations.
IV. Conclusions and/or recommendations
The recommendations which appear below were examined by Botswana and did not enjoy its support during the working group review:
117.27. Decriminalize consensual same-sex activities between adults and promote tolerance in this regard (Czech Republic);
117.28. Evaluate to repeal the criminalization of same-sex relations (Argentina);
117.29. De-criminalize same sex activities and adopt policies to counter discrimination against LGBT (Netherlands);
117.30. Decriminalize consensual sexual relations between same-sex adults and strength efforts to combat discrimination against those persons, while respecting their rights to association and representation in civil society (Spain);
117.31. Remove relevant articles of the Penal Code criminalising same sex sexual activities (Slovakia);
117.32. Guarantee the fundamental rights of all persons living in Botswana and thereby decriminalize sexual relations of consenting adults of the same sex (France).
The following recommendations were further examined by Botswana and finally rejected at the 23rd session of the Human Rights Council in June 2013:
116.35. Take steps to implement comprehensive anti-discrimination laws, particularly to eliminate discrimination on the basis of sexual orientation (Australia);
116.38. Engage in a dialogue to repeal laws which criminalize consensual adult same sex relations (Canada).
Explanation of the State under review: “Botswana, as a predominantly Christian nation, has not reached a stage in which she can accept same sex activities. It will be necessary to conduct educational campaigns on this issue so that when the laws are changed people will be carried along.” (A/HRC/23/7/Add.1)
V. Adoption of the Report
The draft report of the Working Group was adopted at the 23rd session of the Human Rights Council in June 2013.
Presentation by the State under review
Hon. Dikgakgamatso N. Seretse, Minister of Defence, Justice and Security, stated that Botswana had not accepted any recommendation that was inconsistent with the constitution and that was socially repugnant in society. He noted that he had comprehensively covered the national position on these issues during the review, but that the government remained open to dialogue.
Comments by States and other stakeholders
The United States was pleased with the government’s willingness to engage with Botswana’s civil society and the international community on some of the most sensitive human rights matters in the country. It believed such engagement represented an excellent opportunity to make progress on a number of important issues, including the human rights of LGBT persons.
LEGABIBO & ILGA , delivered by Lame Charmaine Olebile
Watch the video (chapter 17)
Thank you Mr. President.
This statement is also read on behalf of the lesbians, gays and bisexuals of Botswana. I would like to thank the government of Botswana for engaging in the UPR process and in consultation with civil society.
We would like to acknowledge the steps government has taken to engage with LGBT persons particularly in the workshop on the development of the National Action Plan on Human Rights. LEGABIBO, a group of LGBT persons in Botswana, which was also involved in the civil society consultation, has been trying to formally register over several years but has been denied registration thus making it difficult to support the community and raise awareness on the violations and human rights abuses faced by the LGBT people. In pursuing this registration case at the High Court we hope to be granted our right to be recognized as a legal entity.
We call on the government of Botswana to continue to take concrete steps to implement comprehensive anti-discrimination laws. Although we praise the amendment made in 2010 of the Employment Act which now includes sexual orientation as a protective ground against unfair dismissal, we would like to draw attention to other forms of discrimination faced by LGBT people in their lives such as access to health services.
We regret that the government of Botswana has rejected recommendations made by a number of states to decriminalize same sex sexual relations between consenting adults. Although the government has rejected the recommendations from Canada and Australia to engage in dialogue to repeal laws which criminalize consensual adult same sex relations and to take steps to implement anti-discriminatory laws particularly to eliminate discrimination on the basis of sexual orientation respectively, we welcome Botswana’s position to conduct educational campaigns on these issues and encourage the participation of civil society in this endeavour.
Finally, we call on the government of Botswana to strengthen engagement with civil society on issues of sexual orientation and gender identity and we would be willing to share our expertise in this regard.
Sexual Rights Initiative & Rainbow Identity Association Botswana, delivered by Skipper Mogapi
Watch the video (Chapter 18)
I make this statement on behalf of the Sexual Rights Initiative and Rainbow Identity Association Botswana. Rainbow Identity advocates in Botswana for the human rights of transgender, gender non- conforming and intersex people.
Transgender persons are faced with problems of obtaining documents reflecting their actual gender identity. The current procedure for change of gender marker is ad hoc, unsystematic and unclear and involves great sacrifice and significant resources as part of a high court application process. The impact on the daily lives, health and wellbeing of transgender persons is negatively affected by this unnecessarily complex process.
When the sex of an intersex baby is assigned, the choice and option of this individual to identify and express their gender in keeping with their gender identity is removed. This removal of the right to bodily autonomy and integrity in Botswana must be addressed urgently to prevent the enormous impact on intersex children and adults of both the mutilation of the surgery as well as the psychosocial impacts on them.
We regret that the government of Botswana rejected the recommendation on sexual orientation and gender identity calling for adoption of measures necessary to combat discrimination of all kinds including those based on sexual orientation, gender, colour, religion and political opinion. The rejection of this recommendation is of deep concern, considering the ways that the human rights of individuals who are gender non-conforming or in same sex relations are violated in their communities, in the health system and in the workplaces.
We welcome the willingness of Botswana to engage in educational campaigns on gender identity and sexual orientation in the coming years.
We call on the government of Botswana to:
1. Recognise the right to bodily autonomy for intersex persons by ending all sex assignment procedures on babies and children and enabling intersex persons to make these decisions for themselves as part of an evolving capacity for informed consent
2. Put in place laws and policies that will enable the gender markers on identity documents to reflect the gender identity and expression of transgender persons through clear and efficient processes that respect the dignity of persons making these applications
3. Create mechanisms for sustained dialogue between the government of Botswana and human rights defenders who defend human rights relating to sexuality and gender including gender identity and sexual orientation, particularly the recognition and protection of human rights related to gender identity and sexual orientation.
Commonwealth Human Rights Institute, delivered by Kirsty Welch
[…] We are dismayed at Botswana’s rejection of all recommendation on the decriminalisation of same sex conduct between consenting adults.
Botswana’s Penal Code contains provisions that criminalise consensual adult same sex conduct. This law is incompatible with Botswana’s human rights obligations, entrenches homophobia and reinforces stigma and prejudice based on sexual orientation. CHRI therefore, strongly urges the government of Botswana to review and repeal these legal provisions.
We recognise the recent progressive steps taken by Botswana as indication of its leadership on human rights in the region. We note, with appreciation, the amendment of the Employment Act to offer some protection from discrimination based on sexual orientation. We encourage Botswana to continue this positive commitment towards advancing human rights for all, regardless of their sexual orientation.
To this end CHRI urges Botswana to:
- Issue a moratorium on public prosecutions of consensual adult same-sex activity;
- Continue facilitating constructive dialogue and cooperation on sexual orientation and gender identity between civil society actors, human rights defenders, government officials and other relevant stakeholders;
- Implement sexual orientation and gender identity education and training programmes, that are based on human rights law and standards, such as the Yogyakarta Principles;
- And finally, protect the rights of human rights defenders working on sexual orientation and gender identity issues. In particular, safeguarding their rights to expression, association and representation in civil society.
DITSHWANELO, BOCONGO, LEGABIBO & Rainbow Identity Association, delivered by Alice Mogwe
[…] We regret the rejection of the deferred recommendation to engage in dialogue concerning discrimination of consensual adult same sex relations. We, however, note the observation that “it will be necessary to conduct educational campaigns on this issue” before legal reform. This should include engagement in meaningful, constructive dialogue. […]
VI. Further information
National report: A | C | E | F | R | S
Compilation of UN information: A | C | E | F | R | S
Summary of stakeholders’ information (see all submissions): A | C | E | F | R | S
Questions submitted in advance : E
Addendum 1: E
Addendum 2: E
Outcome of the review