Botswana’s Court of Appeal on Tuesday reserved judgement in a case in which the state seeks to overturn a 2019 ruling that decriminalized same sex relations. In a landmark case the High Court had ruled in favor of the gay, lesbian, bisexual and transgender community, but the government is challenging the judgment.

Members of the Lesbians, Gays, Bisexual and Transgender (LGBT) community will have to wait a little longer before they know the outcome of an appeal challenging a ruling in their favor.

Court of Appeal judge, Ian Kirby said the bench needs more time before making a determination.

“We will reserve judgement in this case. It’s obviously an important case that we need to research and debate thoroughly so we are not going to promise judgement next week as we have done with others [cases],” he said.

The respondents’ defense lawyer, Tshiamo Rantao, said the LGBT community is entitled to constitutional rights and privacy. He said the laws criminalizing same-sex relations should be expunged.

“The courts have a sacred duty which they must exercise objectively and without fear or fear to test any, we emphasize, any law passed by parliament against the imperatives of the constitution and to strike down any law including a customary law that does not pass constitutional master. That will always be so,” said Rantao.

State attorney, Sidney Pilane however, wants the earlier ruling to be overturned. He argued, the majority of people in Botswana did not concur with the 2019 judgement.

“Batswana respect the law and they respect courts. But don’t assume that they are happy when courts make decisions that courts should not make. Please don’t make that assumption. When Batswana are quiet, please don’t think that they agree. And when they watch court decisions come down, don’t think they necessarily agree with those court decisions,” he said.

Activists carry a rainbow flag outside the Botswana High Court, Oct. 12, 2021.

Activists carry a rainbow flag outside the Botswana High Court, Oct. 12, 2021.

Bradley Fortuin, spokesperson for Lesbians, Gays and Bisexuals of Botswana (LEGAGIBO), says regardless of court’s eventual decision, they will continue to advocate for marginalized groups.

“This is just another opportunity for LEGAGIBO to continue doing advocacy work to ensure that there is visibility, that there is continuous awareness raising and inclusion of marginalized groups, not only the LGBTIQ community but other groups like people living with HIV, people living with disabilities who are often sidelined,” he said.

Before the June 2019 judgement, Botswana’s Penal Code criminalized “unnatural offenses” and “indecent practices” with those found guilty facing up to seven years imprisonment.

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