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CAPE TOWN — Botswana’s High Court ruled on Tuesday to overturn colonial-era laws that criminalized homosexuality, a decision hailed by activists as a significant step for gay rights on the African continent.
“Human dignity is harmed when minority groups are marginalized,” Judge Michael Leburu said as he delivered the judgment, adding that laws that banned gay sex were “discriminatory.”
Three judges voted unanimously to revoke the laws, which they said conflicted with Botswana’s Constitution.
“Sexual orientation is not a fashion statement,” Judge Leburu added. “It is an important attribute of one’s personality.”
The small courtroom in Gaborone, the capital, was packed with activists on Tuesday, some draped in the rainbow flag of the L.G.B.T. movement.
“It is a historical moment for us,” said Matlhogonolo Samsam, a spokeswoman for Lesbians, Gays and Bisexuals of Botswana, a gay rights group. “We are proud of our justice system for seeing the need to safeguard the rights of the L.G.B.T. community.”
“We still can’t believe what has happened,” Anna Mmolai-Chalmers, the chief executive of the gay rights group, said as celebrations began outside the courtroom. “We’ve been fighting for so long, and within three hours your life changes.”
The laws had been challenged by an anonymous gay applicant, identified in court papers only as L.M. In a written statement, read by lawyers in the courtroom, the applicant said: “We are not looking for people to agree with homosexuality but to be tolerant.”
Homosexuality has been illegal in Botswana since the late 1800s, when the territory, then known as Bechuanaland, was under British rule. Section 164 of the country’s penal code outlaws “unnatural offenses,” defined as “carnal knowledge against the order of nature.”
Those determined to have committed such acts faced up to seven years in prison, with terms of up to five years for “any person who attempts to” engage in homosexual acts.
The laws’ wording closely resembles that of many other former British colonies where homosexuality is illegal. England banned sex between men in the 16th century, a law that was struck down in 1981 by the European Court of Human Rights. Yet by then, activists say, early British attitudes toward homosexuality had been imposed on the country’s former colonial subjects. Of the more than 70 countries globally that criminalize homosexuality, more than half were once under British dominion.
Challenges to these laws have been met with mixed success. In 2018, India’s Supreme Court struck down its “unnatural offenses” provision, declaring the law “irrational, indefensible and manifestly arbitrary.” Other Commonwealth nations that have revoked anti-sodomy laws include Australia, Belize and South Africa.
But last month, Kenyan judges upheld laws criminalizing gay sex, a move that activists feared would set back the push to expand L.G.B.T. rights in Africa.
Homophobia is widely entrenched on the continent, with gay sex outlawed in more than 30 countries. In several northern African nations, including Somalia and Sudan, homosexuality is punishable by death; offenders in Sierra Leone, Tanzania and Uganda face life in prison.
Even as laws change, confronting beliefs could prove challenging. A 2013 survey by the Pew Research Center reported “widespread rejection” of homosexuality in six African nations — including South Africa, which is widely considered to have some of the most progressive gay rights legislation in the world.
On Tuesday, Judge Leburu referred to Botswana’s anti-sodomy laws as a “British import,” adding that they had been developed “without consultation of local peoples.”
He added that it was “not the business of the law to regulate the private behavior of consenting adults,” according to reporters tweeting from the courtroom.
An earlier bid to strike down Botswana’s anti-sodomy laws failed in 2003, after a case reached the national appeals court. That decision “left open a window” to another challenge, Judge Leburu said on Tuesday.
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