Alleged Gay Challenges Homosexual Laws
Panafrican News Agency, May 3, 2001
Dakar, Somalia
Gaborone, Botswana—A man who is accused of
engaging in homosexuality in Botswana has filed an application in the High
Court challenging the country’s laws on unnatural sexual liaisons.
Utjijwa Kanani has gone to court to challenge certain provisions of the
Botswana Penal Code, which he feels are inconsistent with the constitution of
the country.
Hearing of the case is set for 31 May.
In his founding affidavit, Kanani concedes that he was found in bed with
another man.
However he argues that the offence he is alleged to have committed—having unnatural sex—should no longer be the subject of criminal sanction
and the sections of the constitution that bars such conduct should be declared
null and void.
"I therefore pray that this court grant an order declaring that
sections 164 and 167, and therefore by reference section 165, of the penal
code are ultra vires to the constitution."
Kanani asserts that the penal provision preferred against him offends
against the constitution and says the legislation discriminates against him by
virtue of his gender.
It is Kanani’s argument that a similar conduct by females is not labeled
criminal under the Botswana laws.
He feels that contrary to the constitution the charge as framed
discriminates against him as a male and that it inhibits his freedom of
association.
Therefore the legal sanctions against unnatural sexual liaisons offends
Section 3(b) and (c) of the constitution which allows freedom of association,
he argues.
The case arises out legal proceedings in 1995, which were instituted after
police raided the house of Graham Norrie, a foreign national, who was found in
bed with Kanani.
Norrie, who was arrested and charged with indecent conduct and having
unnatural sex pleaded guilty without evidence being led in court. He was
subsequently fined and deported.
However Kanani claims that he cut a deal with the police to be a witness
against Norrie in the case.
But the authorities later charged him with the same offence apparently
after Norrie pleaded guilty without evidence being produced in court.
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