|Click here for a summary of Botswana’s review at the second cycle and/or the third cycle.|
3rd UPR session
Date of review: 1 December 2008
Date of report adoption: 13 January 2008
Document number: A/HRC/10/69
SOGIESC issues during Botswana’s 1st UPR review
I. SOGIESC issues/recommendations identified by NGOs
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.
II. Excerpts on SOGIESC issues from the national report
III. Excerpts on SOGIESC issues by UN agencies
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.
IV. References to SOGIESC issues during the Working Group review
19. The delegation confirmed that the law in Botswana criminalizes same-sex sexual activities; however, it allows for the registration of civil society organizations that are not set up to advocate for the rights of lesbians, gays, and bisexuals, to nonetheless advocate for the rights of such groups.
32. Spain […] recommended the decriminalization of homosexual relationships and practices.
36. With regard to unemployment, France noted that a racist xenophobic attitude against migrant workers, particularly Zimbabweans, is developing and enquired about countermeasures. France also noted that the Penal Code criminalizes the relations of people of the same sex and that the Constitution does not provide protection for people discriminated against on the basis of sexual orientation. In 2003, the Court of Appeal ruled Section 164 of the Penal Code discriminatory; in this connection, France enquired as to whether Botswana envisages the decriminalization of consenting same-sex activity. France recommended that Botswana adopt the necessary measures to combat discrimination of all kinds, including those based on sexual orientation, gender, colour, religion and political opinion.
37. The Netherlands noted that the Constitution forbids discrimination on the base of ethnicity, race, nationality, creed, sex or social status, but that civil society organizations advocating for the rights of LGBT have been denied legal status and same-sex sexual activities between consenting adults remain a criminal offence. It recommended that the Government decriminalize such activities and forbid discrimination on the base of sexual orientation.
42. Botswana […] noted the role of civil society in educating the people and in advocating for change on the issue of the death penalty and the criminalization of homosexuals activities. It repeated its openness towards organizations advocating for these issues.
49. Slovakia […] echoed the recommendation of the Committee on Civil and Political Rights, suggesting that Botswana repeal provisions on the criminalization of same-sex activities between consenting adults from its legislation.
50. The Czech Republic […] recommended that consensual same-sex activity between adults be decriminalized and that measures to promote tolerance in this regard, which would also allow more effective educational programmes for prevention of HIV/AIDS, be taken.
65. Canada recommended that Botswana decriminalize same-sex activity by adults and that it eliminate the use of death penalty.
69. Australia […] noted that Botswana could play a leading role in the area of the death penalty and the decriminalization of homosexuality.
91. In his concluding remarks, the Minister […] noted the strong recommendations made particularly on corporal punishment, the death penalty and the decriminalization of homosexual practices.
V. Conclusions and/or recommendations
Botswana noted the following recommendations:
18. Adopt the measures necessary to combat discrimination of all kinds, including those based on sexual orientation, gender, colour, religion and political opinion (France);
23. Decriminalize homosexual relations and practices/consensual same-sex activities between adults (Spain, Netherlands, Slovakia, Czech Republic, Canada);
23.b Outlaw discrimination on the basis of sexual orientation (Netherlands);
24. With regard to consensual samesex activity between adults, take measures to promote tolerance and allow effective educational programmes on HIV/AIDS prevention (Czech Republic).