Constitutional Reforms Under President Duma Boko: A New Era for LGBTQIA+ Rights in Botswana?

The new government has continuously proven to be progressive, as evidenced by not only the February budget speech but also the words of our new president, Advocate Duma Boko. Although the new government appeals to many, it does not come without controversy. 

Our government has come up with many initiatives for constitutional reform, including the rights of the Lgbtqia+ community, although being a part of the community has been decriminalized in Botswana, there are still no protections for the community, which the president has realized and is attempting to ensure that it is corrected.

Botswana has previously made progress in advocating for the LGBTQIA+ community’s rights, especially through judicial interventions. The latest constitutional review discussions under the new government administration showcase opportunities and problems for securing effective protections. Will Botswana be able to elevate LGBTQIA+ rights in its constitution or will progress remain restricted to judicial declarations?

In the past Botswana has criminalized same-sex relationships as per section 164 of the Penal Code which imposed up to seven years’ for “carnal knowledge against the order of nature”. This law, established in the colonial era was repealed, confirming that criminalizing consensual same-sex relations infringed on their rights to dignity, privacy, and liberty. This elevated the progress made in ensuring personal dignity is fundamental to constitutional rights.

At the beginning of 2024, the government began a constitutional review process targeted at modernizing Botswana’s constitution. Proposed changes add protections for sexual orientation and gender identity, as Section 3 of Botswana’s Constitution currently excludes sexual minorities. Section 15 prevents prejudice but does not expressly list sexual orientation and gender identity as protected classes. The constitutional review will provide an opportunity for the amendment of section 15 to include these protections, therefore aligning with Botswana’s international human rights adherences.

In spite of Botswana’s progress important legal gaps still exist. Same-sex relationships are legalized, but same-sex couples are not legally recognized under the Marriage Act. While Botswana is progressive in its anti-discriminatory laws in employment as per the Employment Act, similar protections are not present in healthcare and housing. Inter-sex persons and non-binary people lack concise legal recognition which exposes them to administrative and social prejudice. Failing to amend identity documents to show gender diversity is still a dire problem that should be implemented into the constitution and statutory provisions.

Organizations such as LGABIBO (Lesbians Gays and Bisexuals of Botswana), have played a pivotal role in advocating for LGBTQ rights. Advocacy efforts have placed Botswana in the international spotlight as a defender of LGBTQ rights in Africa. Government willingness to engage LGBTQIA+ leaders in reviewing the Marriage Act signals a possible shift toward deeper recognition and inclusivity.

The constitutional reform process should be in accordance with Botswana’s obligations under international human rights treaties. Botswana is an endorser of the International Covenant On Civil and Political Rights(ICCPR) which is responsible for implementing the right to equality and non-discrimination.

The new government must now ensure constitutional protection for everyone, regardless of sexual orientation. Although previous governments have made an attempt at this, I believe that they have not been effective at completely protecting the rights of the LGBTQIA+ community. They have done the bare minimum and expected the people of the community to accept this. The newly elected President, His Excellency Duma Boko has previously mentioned that he intends on amending this by further protecting the rights of the LGBTQIA+ community which solidifies the progression of Botswana as a nation.

Lawmakers should revise the Marriage Act to provide for same-sex unions, ensuring the full protection and inclusion of the LGBTQIA+ community. Section 15 of the constitution should provide for non-discrimination based on sexual orientation and gender identity, including legal provisions that acknowledge gender identity and intersex rights. The conversation on LGBTQIA+ rights should go past the legislature and extend to the society and ensure their acceptance.

Botswana now faces a clarifying moment in its democratic evolution. The constitutional review presents an exceptional opportunity to solidify LGBTQIA+ rights, transforming Botswana into a beacon of equality in Africa. While legal positive results have been significant, true progress resides in embedding these rights into the Constitution, ensuring that no future government can easily get rid of them.

As the nation debates its constitutional future, the question is still: Will Botswana take hold of this moment to champion human rights for all, or will it allow political and cultural resistance to stall progress? The answer will have a lasting impact on the country’s legacy for generations to come, particularly for the LGBTQIA+ community.