海角大神

When Letsweletse Motshidiemang was growing up in a village in northern Botswana, there wasn't exactly a name for what he was.听Certainly no one ever used words like gay, or queer, or LGBTQ. In fact, no one called him much of anything at all. And in that silence, he says, was a quiet acceptance. 鈥淧eople knew I was different, but I was surrounded by people who loved me,鈥� he says. 鈥淚 was never taught to hate myself.鈥�

So it wasn鈥檛 they who first suggested he might have to change who he was. 鈥淚t was the laws,鈥� he says. Men like him, he learned as a teenager, couldn鈥檛 get married to other men. They couldn鈥檛 start families. Their very existence, in the eyes of the police and the courts and the constitution in Botswana, was a crime.

And so in 2016, when he was 21, Mr. Motshidiemang approached a law professor at the University of Botswana, where he was a student, and asked for his help to challenge Botswana鈥檚 鈥渃arnal knowledge鈥� law, a colonial-era prohibition on gay sex.

At the time, he wasn鈥檛 an activist. He鈥檇 never been to pride parades or even had a close gay friend. He was a bookish literature student who dreamed of moving home after graduation to work as a primary school teacher. He had nothing behind him but the conviction that the law was wrong, and the way he wanted to live was right.

鈥淚鈥檓 just someone who takes pride in who he is,鈥� he says. 鈥淚 did this so people like me don鈥檛 need to feel like who we are is a crime.鈥�

And three years later, on a bright winter day in Botswana鈥檚 capital, a panel of three High Court judges unanimously affirmed that belief.

鈥淎 democratic nation is one that embraces tolerance, diversity, and open-mindedness,鈥� said Judge Michael Leburu, reading from the court鈥檚 ruling Tuesday morning. 鈥淲e have determined that it is not the business of the law to regulate private consensual sexual encounters鈥� between adults.听

AP

Activists sit in a courtroom to wait for the decision by the High Court in Gaborone, Botswana, June 11. Botswana became the latest country to decriminalize gay sex when the High Court rejected as unconstitutional sections of the penal code that punish same-sex relations with up to seven years in prison.

Ten miles away, in the one-room brick house where he lives on the fringes of Gaborone, Mr. Motshidiemang, now 24, began to weep. 鈥淥f course I wanted to win, but I didn鈥檛 expect it,鈥� he said through tears on the phone. 鈥淚 did it just because I felt it was something I had to do for my community.鈥�

And for activists who gathered at the courthouse and those watching from around the continent, the moment was bigger still. For only the second time in history, an African court had struck down a national law criminalizing homosexuality, cracking open a door for other countries to follow their lead. (South Africa鈥檚 Constitutional Court decriminalized gay sex in 1998.)

Legacy of colonial era?

Botswana, like more than half of the 70-some countries that criminalize homosexuality worldwide, inherited its law from the British Empire. In recent years, momentum has been building globally to repeal those laws, which prohibit sex 鈥渁gainst the order of nature,鈥� arguing that they were imposed without consultation in societies that had sometimes made space for a range of sexualities in the past.听And听in cultures where many opponents of LGBT rights see them as 鈥淲estern imports,鈥� having regional precedents is especially key, legal activists say.

鈥淲e鈥檝e seen an increasing trend of countries drawing on other countries in their region,鈥� or in other Commonwealth countries, says Neela Ghoshal, senior researcher in the LGBT Rights program at Human Rights Watch. 鈥淪o I think this ruling is going to inspire activists around the continent and in other parts of the world as well. The language of the ruling in Botswana is so clear. It makes really crystal clear that people鈥檚 private sexual behavior and morality is not the business of the state.鈥�

Last year, India struck down its own 鈥渙rder of nature鈥� law, with the judges writing that it had been 鈥渋rrational, indefensible and manifestly arbitrary鈥� and that 鈥渉istory owes an apology to members of the community for the delay in ensuring their rights.鈥澨�

鈥淲e鈥檝e been stuck with these provisions when [the British] have long discarded them,鈥� says Tshiamo Rantao, the lawyer for the Lesbians, Gays & Bisexuals of Botswana (LEGABIBO), an advocacy group that joined the case as a friend of the court. He notes that while Botswana鈥檚 laws punish homosexuality with up to seven years in prison, it was decriminalized in England and Wales half a century ago.

But last month, a court closer to home, in Kenya, voted unanimously to uphold that country鈥檚 prohibition on gay sex, leading many to worry that momentum for global repeal had been scuttled.

In that case, indeed, the Kenyan High Court cited a 2003 decision from Botswana, Kanane v. The State, which found that 鈥渢he time has not yet arrived to decriminalize homosexual practices.鈥�

鈥淕ay men and women do not represent a group or class which at this stage has been shown to require protection under the Constitution,鈥� the Botswana court explained at the time.听

On Tuesday, however, the three-judge panel returned to that argument, and this time, found it lacking.

鈥淎s society changes, the law must evolve,鈥� explained Judge Leburu, speaking on behalf of himself, Abednico Tafa, and Jennifer Dube, the three judges who heard the case. The law in Botswana, he said, was a 鈥淏ritish import鈥� and had been developed 鈥渨ithout consultation of local peoples.鈥�

It鈥檚 鈥渁bout time Botswana sheds this colonial legacy and interprets its own humanity,鈥� says Tshepo Ricki Kgositau, a transgender woman who in 2017 successfully challenged at this same court to have the gender marker on her driver鈥檚 license changed from male to female.

Ms. Kgositau鈥檚 case, indeed, was part of a wider strategy of LGBT rights groups here to incrementally challenge discriminatory laws in order to create precedent.

鈥淲e had to set the courts up to change their minds,鈥� says Anneke Meerkotter, litigation director for the Southern African Law Centre, which provided legal support to LEGABIBO. 鈥淲hen you rush to court and the court isn鈥檛 ready, it can actually set you back years in your fight.鈥�

The case in Botswana is of particular significance for African legal activists, who have long faced the accusation that homosexuality and its allies are an imported Western threat to local values.

鈥淎s things stand, Botswana is being forced to abandon its moral values. The courts should be conservative and measured,鈥� explained Sydney Pilane, the lawyer for the state, , arguing that people in Botswana had always opposed homosexuality.

But in Tuesday鈥檚 case, the judges were unequivocal. 鈥淐ultural practice cannot justify any violation of human rights,鈥� said Judge Leburu.

For many supporters of decriminalization, including Mr. Motshidiemang, the idea that their culture was against homosexuality was a simplistic one, anyway. Many people have long loved and accepted them, whether or not they鈥檇 heard of a thing called 鈥済ay rights.鈥�

鈥淚t鈥檚 not that most people in this country hate us,鈥� Mr. Motshidiemang says. 鈥淚t鈥檚 just that the people who hate us are very loud.鈥�

What comes next?

No sooner had the case concluded than many began to ask what would come next. Would Botswana follow South Africa鈥檚 lead and legalize gay marriage? Would there be backlash, now that the law had jumped out in front of public opinion? (A 2016 showed that only 43% of people in Botswana 鈥渁re not opposed to having homosexual neighbors.鈥�)

鈥淲e won鈥檛 fool ourselves. We know a change of law doesn鈥檛 mean the end of discrimination,鈥� says Anna Mmolai-Chalmers, who heads LEGABIBO, the gay rights group. 鈥淏ut the law also has power.鈥�

Around her, on the steps of the High Court, supporters draped in rainbow flags clung to each other, giddily posing for selfies and crying.

Soon, they say, the state will likely bring an appeal, challenging their victory. There may be another day in court, and likely more after that, too.听听

But for today, for now, what they鈥檇 done felt like enough. They had won.