Winds of Change

By Edwin Nyirongo

The winds of change were discerned in Botswana when Festus Mogae， former president of the southern African nation from 1998-2008， expressed his support for gay rights in Africa.

“While I admit that the West often push their agendas on Africa， which we must be wary of， I also believe that we must， as Africans， admit that the world is changing，” Mogae said in an interview in the Africa Renewal newsletter in January. “This means often abandoning some of our long-held convictions about life.”

Mogae was talking about the community of lesbian， gay， bisexual， transgender and intersex （LGBTI） people who face punitive laws in many African countries. In Zimbabwe， Uganda and Malawi， for example， homosexuality is a punishable offense. But many African leaders - like South African Nobel laureate Desmond Tutu， former Mozambique President Joaquim Chissano， and former first lady of Zambia， Christine Kaseba - are now urging the continent to review its traditional stand， saying it can have negative effects on trade， foreign relations and the battle against HIV and AIDS.

Landmark case

In March， Botswanas Court of Appeal， the highest court in the land， came to the aid of the LGBTI community by turning down the governments appeal to ban a gay rights group.

The roots of the case go back to 2005， when activists tried to register a new organization， the Lesbians， Gays and Bisexuals Organization of Botswana， but the application was rejected. They then went to court which rejected the states argument and gave the verdict that the organization be registered in the interests of public order.

When the government appealed against the lower court ruling， Court of Appeal Judge Ian Kirby said the governments effort to ban the organization“interferes in the most fundamental way with the respondents right to form an association to protect and promote their interest.”

The court also said LGBTI groups can campaign on HIV/AIDS prevention， challenge anti-gay legislation in court and freely associate.

Responding to the judgment， Cindy Kelemi， Executive Director of the Botswana Network on Ethics， Law and HIV/AIDS， said， “There is a lot that still has to be done to ensure promotion and protection of the human rights of LGBTI persons. Parliament is responsible for making laws which will protect LGBTI persons from discrimination， stigma and abuse.”

Anna Mmolai-Chalmers， coordinator of the gay rights organization refused registration by the government， said the courts were protecting minority rights and giving a voice to the LGBTI community.

The ruling has been praised by human rights organizations fighting for the same cause in other African countries - from Malawi and Zimbabwe to Namibia and Swaziland. Timothy Mtambo， Executive Director of the Center for Human Rights and Rehabilitation in Malawi， commended what he described as a bold decision.

“The courts in Botswana have shown that they are moved by principles of human rights and democracy and not what the majority thinks. Many African governments are guided by the opinion of the majority and not what is true and just. Everyone should be treated [equally] regardless of ones sexual orientation，” Mtambo said.

Boosting anti-AIDS efforts

How would the verdict impact Botswana？

Mwiza Nkhata， head of law at Chancellor College， a constituent college of the University of Malawi， said the decision means members of the LGBTI community in Botswana can legally form organizations to represent their interests without fear of being sanctioned by law.” It paves the way for the establishment of organizations that can openly articulate LGBTI issues，” Nkhata said.

The ruling is also expected to boost the governments battle against HIV and AIDS. Botswana has one of the highes HIV prevalence rates in the world. The National AIDS Coordinating Agency （NACA） cites the Botswana AIDS Impact Survey of 2008， which put the national HIV prevalence rate at 17.6 percent， with a 2.9-percent rate of new infections.

AVERT， an international charity working in the HIV/ AIDS sector， has identified two key affected populations in Botswana： female sex workers and men who have sex with men （MSM）. According to AVERT，“Homosexuality is illegal in Botswana and due to this punitive law， providing HIV services for this population is inherently difficult... Stigma and discrimination toward this group is still highly prevalent， preventing MSM from seeking HIV-testing services and support.”

However， it adds that “positive progress is being made at a national level， with members of the government openly discussing the importance of working with MSM in Botswanas HIV response.”

The Second Botswana National Strategic Framework for HIV and AIDS （2010-16） also emphasizes the need to constructively address the discrimination and intolerance surrounding homosexuality and sex work. “Without effecting change in such areas， the possibilities of developing national strategies that specifically target and address these issues， Botswanas response to HIV and AIDS will have important gaps that will limit our effectiveness in bringing the epidemic under control，” it cautions. Despite the euphoria about the court ruling， Nkhata， however， thinks that though it is a good precedence for countries with similar legal systems， it is hard to imagine African countries softening their stance on homosexuality.

Colonial legacy

“The most common reason given in many African countries for rejecting same-sex relationships is that homosexuality is against African culture. However， when you scrutinize this argument， you will find that in many African countries， homosexuality became criminal with the establishment of colonial states，” the associate professor said.

But perhaps the unimaginable is already happening.

In Malawi， two men openly engaged in a gay relationship in 2009 were arrested and sentenced to 14 years imprisonment. But the then President Bingu wa Mutharika pardoned them in 2010. Also， in December 2015， Malawis Justice Minister Samuel Tembenu reaffirmed a moratorium on prosecuting consensual same-sex conduct， imposed in 2012， pending a decision on whether to repeal the antihomosexual legislation.

Mozambique implemented a revised legal code that decriminalizes homosexuality in June 2015.