n African Human Rights Law Journal - Same-sex relationships in Botswana : current perspectives and future prospects

Volume 4, Issue 2
  • ISSN : 1609-073X
  • E-ISSN: 1996-2096



In this article, the author examines constitutional challenges to statutes criminalising same-sex behaviour in three Southern African countries. On the one hand, in Botswana and Zimbabwe, the highest courts found (in the Kanane and Banana cases, respectively) that such statutes are not unconstitutional. On the other hand, the South African Constitutional Court invalidated statutes criminalising consensual sexual conduct between men in private. The main explanation for the difference is the fact that the South African Constitution outlaws unfair discrimination on the basis of sexual orientation, while the constitutions of the other two countries do not. However, the author argues that the courts in Botswana and Zimbabwe could have reached a different conclusion, had they creatively applied a broad and generous interpretative approach. Changes to the status quo depends more on the actions of those affected by these laws than on judicial interpretation.

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