Are Our Courts Becoming More Liberal? The Decriminalisation of Same-Sex Relations in Botswana

The Court of Appeal sent shockwaves throughout the nation when it affirmed the High Court’s pronouncement that laws prohibiting sodomy violate the Constitution. As this ruling primarily affects members of the LGBTQI+ community, some have construed it as liberal, but that misses the picture. True, the decision had a liberal result, but it was not based on a liberal rationale.

Understanding this point requires that terms first be defined. Conservatives tend to view the law as rigid and, as such, are reticent to recognise rights not explicitly provided for in legislation or the Constitution. For liberals, however, evolving standards of decency are crucial in deciding the meaning of a law. What the Constitution meant yesterday may have no bearing on what it means today.

In Attorney General v Dow, a law stipulating that children born outside of Botswana could only acquire citizenship if their father was a citizen of the country was held to be unconstitutional. In making this decision, Justice Aguda explained that the Constitution is a living document and gains new meaning as time progresses. This doctrine now forms part of Botswana’s law and constricts the parameters of the liberal-conservative debate. For our purposes, then, a liberal is one who gives expansive readings to this living Constitution, whereas conservatives are those who read it narrowly.

This was especially relevant in the 2003 case of Kanane v. The State, where a man was charged with engaging in sodomy with another man. For him, however, the law under which he was charged was unlawfully discriminatory. In its decision, the Court of Appeal explained that ours is a living Constitution. However, quite conservatively, the Court reasoned that the document’s evolution in this regard is, to a large degree, based on public opinion. As the people of Botswana were not ready to recognise gay rights at the time, the Court ruled against Mr. Kanane. Whatever public opinion may have been in 2003, a more liberal approach to the interpretation of the Constitution would have led to a different result.

Sixteen years later, a similar case was brought before the High Court. A university student was accused of the same offence, but he took a route similar to Mr. Kanane’s, contending that the Constitution should be read more broadly so as to enforce gay rights. He succeeded, prompting an appeal by the State. This culminated in the case of Attorney General v. Motshidiemang and Others.

By this time, the Kanane case had long been decided, and it is an elementary legal principle that decisions of the Court of Appeal form part of the law. More than that, once it has made a decision, it will ordinarily not depart from it. This is a lesson the nation learned during the Carter Morupisi debacle. It is understandable, then, that when the Court of Appeal ruled that the anti-sodomy laws were unconstitutional, seemingly contradicting Kanane v. The State, some raised concerns that our courts were becoming more liberal. It is my opinion, however, that such an analysis is misguided.

The Court of Appeal departed from Kanane v. The State insofar as it recognised that discrimination on the basis of sexual orientation is prohibited by the Constitution, but this holding was only made possible because public opinion and societal attitudes had shifted. Botswana, Africa, and the world at large had become more receptive to gay rights. Section 23 of the Employment Act, which prohibits employers from firing employees on the basis of sexual orientation, is one example of this. For this reason, then, the Court ruled that Batswana were ready to accept gay people, and the Constitution had evolved in consonance with this change in attitudes. There is much to be said about whether public opinion is a valid basis for determining people’s rights, but that discussion is not necessary here. Of relevance, rather, is the fact that the Court of Appeal simply applied the same law it applied in the Kanane case. It is the circumstances, not the rationale, that changed.

Some may call the decision wrong, others may call it right. But none of us are free to label it as liberal. The lesson of the Motshidiemang case is thus quite simple: the courts are not becoming more liberal, we are.