Botswana

For a summary of Botswana’s review at the second cycle, please click here.

3rd UPR session
Date of review: Monday, 1 December, 2008
Date of report adoption: 18 March, 2009
Document number: A/HRC/10/69

Summary

Recommendations made: to adopt the measures necessary to combat discrimination of all kinds, including those based on sexual orientation, gender, colour, religion and political opinion; to decriminalize homosexual relations and practices/consensual same-sex activities between adults; to outlaw discrimination on the basis of sexual orientation; with regard to consensual same-sex activity between adults, to take measures to promote tolerance and allow effective educational programmes on HIV/AIDS prevention.

Status of recommendations: rejected.

I. Key issues/recommendations identified by NGOs

  • Note that, according to the Compilation of UN Information, the UN Human Rights Committee has expressed concern that Botswana criminalizes same-sex sexual activity between consenting adults.
  • Ask whether the government could advise what steps have been taken to comply with the Committee’s recommendation that these laws be repealed.
  • Recommend that Botswana’s criminal legislation be amended in accordance with the recommendation of the Human Rights Committee to decriminalize same-sex sexual activity between consenting adults.

II. Excerpts from input reports
Compilation of UN information

II. PROMOTION AND PROTECTION OF HUMAN RIGHTS ON THE GROUND
B. Implementation of international human rights obligations
4. Right to privacy, marriage and family life

26. The HR Committee noted with concern that the State criminalizes same-sex sexual activities between consenting adults and recommended that the State repeal these provisions.

Summary of stakeholder information

II. PROMOTION AND PROTECTION OF HUMAN RIGHTS ON THE GROUND
B. Implementation of international human rights obligations
4. Right to privacy, marriage and family life

13. As highlighted in a joint submission by the International Lesbian and Gay Association, ILGA-Europe, the Pan African ILGA, LeGaBiBo – Lesbians, Gays, and Bisexuals of Botswana, the International Gay and Lesbian Human Rights Commission and ARC International, as well as by the CHR [Centre for Human Rights of the University of Pretoria], Botswana maintains criminal sanctions against consensual same-sex activity. The CHR reported that civil society organisations that advocate for the rights of the GLBT community have been denied legal status because the Republic of Botswana does not recognize homosexuals.

III. References to SOGI during the Working Group review
Opening statement by H.E. Mr. Seretse Dikgakgamatso – Minister of Defence and Security

In Botswana we are committed to the democratic process. This means that the Government of the day must be responsive to the needs and demands of the people… It is against this background that the position of my Government on issues such as the death penalty, corporate punishment, gays and lesbians rights should be understood. As a Government we cannot legislate against the culture of our society nor the wishes of the vast majority of the people. This cannot be done in a democracy. […]

With regard to decriminalization of same-sex sexual activities, as asked by Netherlands and the United Kingdom, we confirm that the law in Botswana criminalizes same-sex sexual activities. The law does not allow for registration of societies whose constitution and objects go against the law of the land. There are, however, registered civil society organizations in the country that are not specifically set up to advocate on the rights of lesbians, gays and bisexuals. These can within the wider framework of whatever they perceive as human rights, advocate on the rights of such groups. They are free to use the same for that we use in nurturing our democratic processes.

Interactive dialogue and responses by the State under review

Spain – We […] would recommend the decriminalization of homosexual practices.

France – The Penal Code of Botswana considers criminal the relations among people of the same sex in sections 164 and 167, and the Constitution does not provide protection against discrimination based on the sexual orientation of the individuals. Further, through an opinion expressed by the Court of Appeals in Botswana expressed in 2003, the Section 164 of the Penal Code was considered discriminatory. Botswana, does it envisage to depenalize the sexual practices in consenting persons of the same sex? Furthermore, France recommends that Botswana adopt necessary measures in order to combat discrimination of all kinds, with regard to sexual orientation, or gender, colour of skin, religion, and political views.

Netherlands – The constitution of Botswana forbids governmental discrimination on the base of ethnicity, race, nationality, creed, sex or social status. Nevertheless, civil society organizations in Botswana that advocate for the rights of LGBT community have been denied legal status and same-sex sexual activities between consenting adults remain a criminal offence. My delegation would recommend that the Government of Botswana decriminalize such activities and forbid discrimination on the basis of sexual orientation.

Response by Botswana – The same goes of homosexuals, lesbians, gays, etc., that’s the same position, that we leave that to the civil society organizations to educate Botswana because it is not part of our culture. And, as I said, it would be very dangerous to ignore some of the culture that has actually played a vital role in making you what you are as a nation. Laws have developed from culture, and it would be very, very dangerous if then we decide to ignore the culture of the majority of people and go with the minority. That could destabilize the country. But we are open, and as I said, those organizations, which are not necessarily set up to advocate rights of lesbians and gays, but would like to advocate those rights, they are free to do so and educate the people. Once the people accept that these rights must be afforded to everybody, then the people will tell the government that this is what we want, and the government will do it. But we shall not go against the wishes of the people. As I said, that doesn’t happen in a democracy.

Slovakia – We would like to express our concern about the fact that same-sex sexual activities between consenting adults are illegal and criminalized in Botswana. This has been pointed out by several NGOs that have made their contributions to the UPR of Botswana and dealt with also by the Committee on Human Rights. This body recommends to Botswana to repeal respective provisions from its legislation. We would like to echo the request of the Committee and suggest to Botswana to consider this step. To summarize, our recommendations are the following: […] to consider repealing provisions on criminalization of same-sex sexual activities from its legislation.

Czech Republic – With regard to protection to privacy and non-discrimination, we would like to recommend decriminalization of consensual same-sex activity between adults and adoption of measures to promote tolerance in this regard which would also allow more effective educational programmes for prevention of HIV/AIDS.

Canada – Universal human rights exist in particular to protect minorities from the rule of the majority. I have listened intently to the Minister’s explanation for the government’s position on […] the decriminalization of same-sex activity. We would respectfully like to suggest that governments should not leave social progress to civil society groups alone, particularly if they are not allowed to be organized. But, with great respect, progressive governments such as Botswana have a responsibility, as the Minister has indicated, to also lead by example. Canada recommends that Botswana decriminalize same-sex activity by adults.

Australia – We have heard what the delegation had to say regarding the official position on […] sexual orientation. We would, however, see that the government could and should take a leadership role on these issues. We recommend and urge Botswana to […] legislate against discrimination against persons based on their sexual orientation

Response by Botswana – Questions of decriminalizing same-sex [sic], they have been raised by the people, but negatively. In most of the meetings that we address, they will be initiated by the people to say “we believe that you are looking into this particular direction; we wish to tell you that that is not the direction Botswana would like to follow”. So we constantly engage the people on these issues.

IV. Conclusions and/or recommendations
Botswana rejected the following recommendations:

92.18. Adopt the measures necessary to combat discrimination of all kinds, including those based on sexual orientation, gender, colour, religion and political opinion. (France)

92.23. Decriminalize homosexual relations and practices/consensual same-sex activities between adults (Spain, Netherlands, Slovakia, Czech Republic, Canada); and outlaw discrimination on the basis of sexual orientation. (Netherlands)

Botswana accepted the first two points and rejected the last two points of the following recommendation:

92.24. Provide medical follow-up for HIV-positive mothers and respective infected children (Belgium); educate prison populations on the HIV/AIDS virus and respect sanitary conditions of prisons (Belgium); with regard to consensual same-sex activity between adults, take measures to promote tolerance and allow effective educational programmes on HIV/AIDS prevention (Czech Republic); with the support of the international community, continue to fight HIV/AIDS. (Bangladesh)

V. Adoption of the Report
Response of the State under review – Addendum 1 to the report of the Working Group

Recommendation 18

Botswana does not accept the recommendations. The laws of Botswana do not allow same sex sexual activity. Section 15 of the Constitution of Botswana is comprehensive in effectively addressing all issues relating to discrimination. The Government has no plans to amend the Constitution in line with these recommendations.

Recommendation 23

Botswana does not accept the recommendations. The law does not allow same sex sexual activity, a position that reflects the moral and religious norms of Botswana society.

Recommendation 24

Provide medical follow-up for HIV-positive mothers and respective infected children (Belgium); Educate prison population HIV/AIDS virus and respect sanitary conditions of prisons (Belgium): Botswana accepts the recommendations. They are in line with the Government’s health strategies and are currently being implemented.

With regard to consensual same-sex activity between adults, adopt measures to promote tolerance and allow effective educational programmes on HIV/AIDS prevention (Czech Republic); with the support of the international community continue to fight HIV/AIDS (Bangladesh): Botswana does not accept the recommendation. Educational programmes and awareness campaigns on HIV/AIDS target all adults.

Presentation by the State under review

This brings me to the recommendations advanced that Botswana should adopt measures to address all forms of discrimination, including discrimination based on sexual orientation, ethnicity, gender, colour and political opinion. The government of Botswana maintains that section 15(3) of the Constitution of Botswana prohibits discrimination against any person on the grounds of race, tribe, place of origin, political opinions, colour, creed or sex, and, as such, any person who is of the view that their rights have been violated can, at any time, petition before the High Court of Botswana to seek redress. […] It is acknowledged that Botswana criminalizes same-sex sexual activity and practices. This is a reflection of the moral and religious norms of the society. It should be noted, however, that there is no known case of any person who was discriminated against on the basis of their sexual orientation.

Comments by stakeholders

Canadian HIV/AIDS Legal Network

We wish to particularly address recommendations 18, 23 and 24, which deal with the promotion of tolerance, measures to address HIV/AIDS, and the importance of the decriminalization of consensual adult same-sex conduct.

We commend the delegation for its acceptance of recommendation 24 dealing with measures to address HIV and AIDS, but we are disappointed, however, at the rejection of recommendations 18 and 23 dealing with non-discrimination based on sexual orientation and the decriminalization of same-sex activity. We urge the government to consider repealing the provisions of its penal code which criminalize same-sex conduct between consenting adults.

As the UN Human Rights Committee has found, such provisions violate established international human rights law, and in particular the rights to privacy and non-discrimination. We note the comments of the delegation this morning that there is no known case of discrimination on these grounds. Nonetheless, the Human Rights Committee has found that even when the laws are not actively enforced, they stigmatize and marginalize vulnerable groups within society. The struggle against HIV and AIDS is also undermined by such provisions, and the UN Human Rights Committee and UNAIDS have repeatedly emphasized that they ran counter to efforts to address HIV and AIDS by driving marginalized communities underground.

Last December, 66 States from all regional groups, including 6 from the African region, called for an end to laws criminalizing homosexuality. This call was supported by the High Commissioner for Human Rights, Ms Pillay, who stated that no human being, simply because of their perceived sexual orientation or gender identity, may be subject to discrimination, violence, criminal sanctions or abuse.

We appreciated the government’s statement that no people should be subject to discrimination and their expressed willingness to remain open on these grounds, and urge the government to consider repealing these provisions.

VI. Further information
UPR Documentation

National report 1A | C | E | F | R | S
Compilation of UN information 2A | C | E | F | R | S
Summary of stakeholders’ information 3A | C | E | F | R | S
Questions submitted in advance

Outcome of the review
Report of the Working group: A | C | E | F | R | S
Addendum 1: A | C | E | F | R | S
Decision on the outcome: E only
Report of the tenth session of the Human Rights Council: A | C | E | F | R | S
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