Botswana (3rd cycle)

Click here for a summary of Botswana’s review at the first cycle and/or the second cycle.

29th UPR session
Date of review: 17 January 2018
Date of report adoption: 28 June 2018 
Document number: A/HRC/38/8

SUMMARY

SOGIESC issues during Botswana ‘s 3rd UPR review
Civil society submissions: ✓ (1 submission)
National report: ✓
UN information: ✓
Working group discussions: ✓
Recommendations: ✓ (14 noted)

I. SOGIESC issues/recommendations identified by NGOs and other stakeholders
Equality and non-discrimination

17. JS2 recommended that the State under review enact anti-discrimination legislation to protect and promote the rights of sexual minorities and to promote awareness of sexual orientation and genders identity.

18. JS2 stated that there were no mechanisms in place to ensure that transgender people were able to change their documentation once they have transitioned, and recommended creating such mechanisms. There was also no training for service providers on how to assist people who intended to transition, who were in the process of transitioning or who had already transitioned.

Fundamental freedoms and the right to participate in public and political life

25. JS2 stated that there had been an emergence of religious churches which had no tolerance for those rights associated with sexual orientation and gender identity. Those churches promoted discrimination and sometimes the persecution of sexual minorities. JS2 recommended that the State under review undertake a review of the legislation for the registration of societies and churches to ensure that registered organisations strictly adhere to human rights standards, including those of non-discrimination.

Right to privacy and right to family

31. JS2 stated that same-sex relations remained criminalized. While recalling that at the 2013 review, the State under review had noted all the recommendations to decriminalize same-sex relations, HRW stated that the Authorities relied on article 64 of the Penal Code which criminalizes “carnal knowledge against the order of nature” to criminalize same-sex sexual activities. JS2 recommended that the State under review decriminalize same-sex relations and legalize same-sex marriage.

Right to health

36. While noting the development of a national strategy to combat HIV and AIDS, JS2 stated that the implementation of the strategy must be inclusive and cover all key populations including men who have sex with other men, the LGBTIQ community and sex workers. Also, service providers should be trained to provide the required assistance to all members of the key populations.

II. Excerpts on SOGIESC issues from the national report
Non-discrimination

52. Botswana continues to implement court decisions giving beneficiaries their rights and consultations are ongoing with a view to review and reform national laws to address discrimination of marginalised and disadvantaged groups in the society such as refugees, lesbians, gays, bisexuals, trans-gender and/or intersex (LGBTI) persons, domestic workers, sex workers, asylum seekers and foreign inmates.

Right to free association and assembly

121. Where persons are of the opinion that their right to enjoy freedom of association is being infringed upon, they can take the matter to the courts. LEGABIBO recently sued the Government for refusing to register it as an Association. The Judgment on this matter was delivered on the 14th of November 2014 wherein the High Court held that “denying people whose sexual orientation is not a crime in Botswana……the right to register a society for the purposes of lawfully carrying out advocacy for, inter alia, decriminalisation of homosexuality is a clear violation of their constitutional rights to freedom of…association contrary to Section 3 of the Constitution”…“In a democratic society such as ours, freedom of association, assembly and expression are important values duly protected by our Constitution…The enjoyment of such rights can only be limited where such limitation is reasonable and justifiable in a democracy.” This matter went on appeal and the High Court decision was upheld.

III. Excerpts on SOGIESC issues by UN agencies
Right to education

23. UNESCO noted that Botswana was a State party to the Convention concerning the Protection of the World Cultural and Natural Heritage (1972) and the Convention for the Safeguarding of the Intangible Cultural Heritage (2003), and encouraged it to fully implement the relevant provisions that promoted access to and participation in cultural heritage. Botswana should give due consideration to the participation of communities, practitioners, cultural actors and non-governmental organizations from the civil society as well as vulnerable groups (minorities, indigenous peoples, migrants, refugees, young people and persons with disabilities) and ensure that equal opportunities were given to women and girls to address gender disparities.

IV. References to SOGIESC issues during the Working Group review
51. The United States commended Botswana for the court rulings affirming the rights of transgender persons, urged it to protect lesbian, gay, bisexual, transgender and intersex persons from discrimination and expressed concern at restrictions on freedom of expression.

69. Canada noted the ongoing International Criminal Court membership of Botswana and its commitment to the Court. Furthermore, Canada welcomed the court judgments in Botswana enabling transgender persons to change their gender status on national identity registration documents to reflect their gender identity.

92. Ireland was concerned that consensual adult same-sex sexual activities remained criminalized, that lesbian, gay, bisexual, transgender and intersex persons were stigmatized and that the death penalty had been retained. Recalling previous relevant recommendations, Ireland expressed regret at the fact that marital rape had not been criminalized.

108. The Netherlands commended Botswana for its active role as a member of the Human Rights Council and its willingness to create a national human rights institution. It expressed regret at the fact that Botswana had not accept recommendations relating to the decriminalization of same-sex sexual activities.

V. Conclusions and/or recommendations
Botswana noted the following recommendations:

128.46 Continue to address concerns about discrimination based on sex, sexual orientation or gender identity (Philippines);

128.47 Authorize sex changes (France);

129.9 Adopt specific legislation to protect victims of violence and other human rights violations committed against persons on the basis of their real or imputed sexual orientation or gender identity, in line with resolution 275 of the African Commission on Human and Peoples’ Rights (Netherlands);

129.10 Eliminate normative exceptions and practices contrary to the principle of non-discrimination which are not in line with international human rights treaties (Ecuador); 129.11 Enact legislation to eliminate discrimination on the basis of sexual orientation and gender identity (Australia);

129.12 Ensure the adoption of specific legislation to fight discrimination, hate speech and violence based on sexual orientation and gender identity (Brazil);

129.13 Protect lesbian, gay, bisexual, transgender and intersex persons from discrimination by amending sections 164, 165 and 167 of the Penal Code of Botswana to decriminalize same-sex activities among consenting adults and by explicitly including sexual orientation and gender identity as listed grounds of non-discrimination in section 3 of the Constitution (Germany);

129.14 Prohibit discrimination towards the lesbian, gay, bisexual, transgender and intersex community, at the same time ensuring the full respect of everyone’s human rights, regardless of their sexual orientation or gender identity (Uruguay);

129.15 Initiate awareness-raising activities for the general public on the human rights of lesbian, gay, bisexual, transgender and intersex persons, in order to prevent stigmatization and discrimination and to support civil society actors in similar efforts (Finland);

129.45 Decriminalize consensual, same-sex sexual acts (Sweden); 129.46 Decriminalize same-sex sexual activities and ensure nondiscrimination in accordance with Botswana’s domestic and international human rights obligations (Iceland);

129.47 Repeal laws that criminalize consensual, same-sex conduct between adults and ensure all legislation, policies and programmes do not discriminate on the bases of sexual orientation or gender identity (Canada);

129.48 Decriminalize consensual sexual relations between people of the same sex and act to stop the discrimination suffered by people because of their sexual orientation (Spain);

129.49 Analyse modifying the legislation that criminalizes sexual relations between adults of the same gender in order to guarantee the rights of lesbian, gay, bisexual, transgender and intersex persons (Argentina);

129.50 Repeal the law repressing homosexuality (France);

129.51 Build upon recent court decisions upholding the human rights of transgender persons and take action to decriminalize lesbian, gay, bisexual, transgender and intersex status or conduct (United States of America);

VI. Further information
You will find all documents relating to Botswana’s third review at UPR-Info and OHCHR’s websites.