A New Dawn for Gay Rights in Botswana

A Commentary on the Decision of the High Court and Court of Appeal in the Motshidiemang Cases

Bibliographic Data

ID16767530
AuthorsGosego Rockfall Lekgowe (0000-0001-9333-8497, University of Birmingham, corresponding author)
Year2023
Volume67
Issue3
Pages477-485
Publication date2023-10-01
Open AccessYes
TypeARTICLE
VenueJournal of African Law (JOURNAL)
Journal identifiersISSN: 0221-8553 • E-ISSN: 1464-3731
PublisherCambridge University Press (PUBLISHER • US)
DOI10.1017/s0021855323000177
OpenAlexW4382939971
LanguageEN
Citations received2
References cited11

In 2003, the Botswanan Court of Appeal decided in Kanane v The State that discrimination on the basis of sexual orientation was not proscribed by the Botswanan Constitution because no evidence had been adduced showing that the society of Botswana was ready for gay individuals. After sixteen years, things changed: in 2019, in Letsweletse Motshidiemang and LEGABIBO (as amicus) v The Attorney General , the High Court held that the law criminalizing anal intercourse violated the fundamental rights of gay people. In 2021, the Court of Appeal upheld the High Court decision. This commentary briefly examines these three decisions. It argues that Kanane gave too much weight to public opinion to the detriment of constitutional interpretation. Through a robust approach to generous interpretation of fundamental rights, the Motshidiemang decisions partly remedied the flaw in Kanane . However, judicial clarification is still required on some aspects of the decision

Appeal · Constitution · Constitutional court · High Court · Interpretation (philosophy) · Majority opinion · Political science · Sexual orientation · Sociology · State (computer science) · Supreme court · African Sexualities and LGBTQ+ Issues · Judicial and Constitutional Studies · Law · Legal Issues in South Africa · Philosophy

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