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Botswana attorney general seeks to recriminalize homosexuality

High Court heard case on Oct. 12

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(Public domain photo)

GABORONE, Botswana — On June 11, 2019, Botswana moved toward being a state that no longer held some of its citizens (and, by extension, visitors) as criminals if they identified within the LGBTQ spectrum. However, the government didn’t take too long before it declared its intention to appeal the High Court judgment that asserted that consensual same-sex sexual activity in private was not to be a criminal act.

The appeal hearing took place on Oct. 12.

There are some key things to understand about what the High Court did for people in Botswana. The judgment, written and delivered by Justice Leburu, not only put a clear delineation between the state’s powers to intrude in people’s private sexual lives, but it also stated that laws that served no purpose in the governance of the people they oversaw were most likely worthy of “a museum peg” more than being active laws of the land.

In the hearing on Oct. 9, a full bench of five judges of the Court of Appeal was treated to the government’s case—as presented by advocate Sydney Pilane of the Attorney General’s Chambers—along with hearing the rebuttals from the legal counsel representing Letsweletse Motshidiemang, who brought the original case against the government, and LEGABIBO, an NGO admitted as amicus curiae, a friend of the court. The appeal, two years in the making, would have been expected to be based on facts rather than opinions of what could and could not be accepted by hypothetical Batswana. Pilane even went so far as to contest that President Mokgweetsi Masisi’s utterances about how people in same-sex relationships were “suffering in silence” were taken out of context as he was talking about gender-based violence and not endorsing their relationships.

The 2019 ruling of the High Court, the most supreme court of incidence in the country, not only declared people who were or had interest in engaging in consensual same-sex sexual activity not criminals, but it also allowed non-queer people to engage in sex acts that would otherwise be considered “against the order of nature” freely. The latter clause had often been interpreted as being solely about non-heterosexuals but on greater interrogation one realizes that any sex act that doesn’t result in the creation of a child was considered against this ‘order of nature’ and that nullified much of heterosexual sexual exploration—further painting these clauses as out of touch with contemporary Botswana as Leburu expressed.

In some of his appeal arguments, Pilane stated that Batswana “do not have a problem with gay people”, yet he based his contention on the fact that Batswana “respect the courts’ decisions;” as such they would not take up arms at the court’s decision to decriminalize consensual same-sex sexual activity. Pilane maintained that the decision to decriminalize should be left to the Parliament on the recommendation of the courts. The bench was swift to query whether a body of politicians elected by a majority would be the best representatives of a minority that was oppressed by laws that the very politicians benefitted from.

Botswana’s legal system allows for the High Court ruling to remain the law of the land until such a point as it’s struck down. The Court of Appeal ruling in favor of Batswana’s sexual liberties will be a nail in the proverbial coffin of residual colonial sex-related laws plaguing Botswana. This will not be the end by any means though. Where the attorney general can form a case stating that decriminalizing consensual same-sex relations could be likened to people locking themselves in their houses with animals and having their way with them, we know that mindset changes need to be prioritized to ensure that all Batswana understand their constitutionally protected rights to privacy, expression, and freedom of association as relates to their personal and sexual lives.

The 2010 Employment Act of Botswana already protects people from being discriminated against based on their sex or gender identity. The nation’s sexual violence laws were made gender neutral, thus covering non-consensual sex (rape) in all its possibilities. In upholding the ruling of the High Court, the Court of Appeal will allow the LGBTQ and SOGIESC (sexual orientation, gender identity and expression and sex characteristics) movements in Botswana some respite as attention is then channeled toward other pressing matters such as name changes, access to healthcare, and other culturally pertinent issues.

The Court of Appeal is expected to hand down a judgement following their deliberations in 4-6 weeks (mid to late November), however, this remains at their discretion. As it stands, since the High Court ruling in 2019, Botswana has experienced increased social accommodation for LGBTQ matters and figures—however, this is not to say there have not been any negative instances. With the continued sensitization, the expectation is that the courts, the government and NGO players will all contribute to a broad, national, culturing of LGBTQ rights in Botswana devoid of colonial residues.

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The Vatican

Executive director of LGBTQ Catholic group to travel to Rome for conclave

Marianne Duddy-Burke met Pope Francis in 2023

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DignityUSA Executive Director Marianne Duddy-Burke, middle, greets Pope Francis in 2023. (Photo courtesy of Marianne Duddy-Burke)

The executive director of a group that represents LGBTQ Catholics will travel to Rome next week for the papal conclave that starts on May 7.

DignityUSA Executive Director Marianne Duddy-Burke on Thursday told the Washington Blade she will arrive in Rome on May 6. Duddy-Burke said she plans to spend time in St. Peter’s Square “and have conversations with people.”

“I will wear Dignity insignia, have rainbow flags,” she said.

Pope Francis died on April 21. His funeral took place five days later.

The Vatican’s tone on LGBTQ and intersex issues softened under the Argentine-born pope’s papacy, even though church teachings on homosexuality did not change.

Francis, among other things, described laws that criminalize consensual same-sex sexual relations as “unjust” and supported civil unions for gays and lesbians. Transgender people were among those who greeted Francis’s coffin at Rome’s St. Mary Major Basilica before his burial on April 26.

Duddy-Burke and two others from the Global Network of Rainbow Catholics met with Francis in October 2023 during a meeting that focused on the Catholic Church’s future. Duddy-Burke noted Francis “invited” her and her colleagues as his “special guests for the audience and then had a conversation with him afterwards.”

“For me the sort of visibility that he (Francis) brought to our community and to our concerns feels irreversible,” said Duddy-Burke. “He empowered so many people and so many new ministries.”

Cardinal Fridolin Ambongo Besungu — the archbishop of Kinshasa in Congo who has described homosexuality as an “abomination” — is among the cardinals who are reportedly in the running to succeed Francis.

“I really don’t know,” said Duddy-Burke when the Blade asked her who the next pope will be. “Of course, I am hoping and praying hard that it will be someone who will continue to lead the church on responsiveness of human need and greater inclusivity.”

“What happens in that room is such a mystery,” she added.

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Lesotho

LGBTQ activist murdered in Lesotho

Authorities have arrested a suspect in Kabelo Seseli’s death

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Kabelo Seseli (Photo courtesy of Seseli's Facebook page)

Kabelo Seseli, a gay crossdresser and LGBTQ activist in Lesotho, was murdered over the weekend in a suspected homophobic attack.

According to the People’s Matrix Association, a LGBTQ rights organization, Seseli’s body was found with stab wounds on their neck and genitals.

“This was not just a murder, it was a hate-driven, dehumanizing act meant to send a message of fear and rejection to our community,” said the People’s Matrix Association in a statement posted to its Facebook page on April 29. “Kabelo deserved to live. Kabelo deserved dignity, safety, and the freedom to exist without fear, just like every Mosotho.”

The LGBTQ rights group also said it is demanding action, justice, and protection from the government, especially given the fact authorities have arrested a suspect.

“We strongly condemn this act of violence and call on the government of Lesotho and law enforcement authorities to conduct a thorough investigation and ensure that those responsible are held fully accountable,” said the People’s Matrix Association. “We also urge leaders and the public to reflect on the role of hate speech and social stigma, which continue to incite violence against LGBTI individuals across our country. We demand action.”

Victor Mukasa of Trans and History Intersex Africa also condemned Seseli’s murder.

“Death is a fact of life, but murder is criminal,” said Mukasa. “Murder of people because they are LGBTIQA+ or for belonging to a particular social group is a hate crime.”

Thato Motsieloa, a gay crossdresser and LGBTQ activist, said he was “deeply distraught to learn about the brutal murder of Kabelo Seseli.” Motsieloa said he and Seseli met on Facebook.

“Although we never met in person, we had plans to do so,” said Motsieloa. “The manner of his death is particularly heartbreaking, and the fact that his killers desecrated his body by removing his private parts is utterly heinous. I hope justice is served, and those responsible face the consequences of their horrific actions. My sincerest condolences go out to Kabelo’s family, may his soul rest in eternal peace.”

Lesotho in 2012 decriminalized consensual same-sex sexual relations. Marriage, however, remains limited to heterosexual couples. There have also been sporadic reports of anti-LGBTQ hate crimes since 2012.

The International Commission of Jurists, in partnership with Outright International, a New York-based LGBTQ advocacy group, in 2022 held a workshop with the Lesotho judiciary that focused on human rights for the LGBTQ community.

The judiciary noted LGBTQ people exist, but acknowledged there is no local jurisprudence on their rights, even though the country’s constitution guarantees the right to respect private and family life and freedom from discrimination.

Religious and cultural norms, like in many African countries, play a pivotal role in how society perceives the LGBTQ community. Many people in Lesotho disregard the existence of LGBTQ people, even though the government is trying to make room for the acknowledgment of LGBTQ rights.

Outright International Africa Advocacy Officer Khanyo Farise says the judiciary’s active engagement with the LGBTQ community is an important step towards ensuring LGBTQ rights are upheld.

“Judges and judicial officers play an important part in ensuring access to justice for LGBTIQ+ people, but also have an important role in producing judgments which can advance their human rights,” said Farise.

ICJ Africa Communications and Legal Officer Mulesa Lumina said though the ICJ is encouraged by these developments, particularly the willingness of judiciary members to understand the plight of the community, LGBTQ people continue to face harassment, discrimination, abuse and violence because of their actual or perceived sexual orientation and gender identity.

“We will continue working with partners, such as the People’s Matrix and Outright International, to ensure the enforcement of the country’s obligations under international human rights law, which entitle LGBTIQ persons to the full range of human rights without discrimination,” said Lumina.

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India

LGBTQ Kashmiri students targeted after terrorist attack

26 people killed in Baisaran Valley on April 22

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Baisaran Valley in Kashmir (Photo by SB Stock/Bigstock)

Baisaran Valley, a Kashmiri meadow surrounded by pine trees, was bustling with Hindu tourists on April 22.  

Families were wearing phirans (traditional Kashmiri clothing) for photos, while ponies trotted along the Lidder River. Gunfire shattered this peace when five terrorists opened fire. They targeted Hindu men, checking their religion before shooting them. The terrorists killed 26 people — 25 tourists, including a Navy officer who was on his honeymoon — and Syed Adil Hussain Shah, a pony guide who died protecting others. More than 20 others were wounded.

The Resistance Front, a Pakistan-based group tied to Lashkar-e-Taiba, a terrorist organization, initially claimed responsibility for the attack, but retracted the claim three days later, fearing India’s diplomatic and military response that eventually included the tightening of borders and the suspension of the Indus Waters Treaty.

The attack sparked outrage across India.

Misdirected anger targeted Kashmiri students in Dehradun, Jalandhar, and other cities in which LGBTQ people face heightened vulnerability. They endured harassment, evictions, and threats of violence. The J&K Students Association reported more than 1,000 distress calls, and Kashmir Chief Minister Omar Abdullah urged states to protect them.

Activists across India have rallied to help LGBTQ Kashmiri students in their cities.

Harish Iyer, a prominent activist, offered shelter and legal assistance to them in Mumbai, the country’s financial hub.

“Religion is a tool used by terrorists worldwide to ensure that their victims divert their energy towards fighting each other while  they continue to focus on our destruction,” said Iyer. “It is a tried and tested formula designed to divide us while we should all be united against them.”

Iyer told the Washington Blade he saw videos of Kashmiri students being targeted.

“Hate gets compounded when you look at it from several intersectional points,” he said. “To belong to identities like queer, Muslim, and Kashmiri makes one vulnerable. In a moment where hate reveals its fang, it is important that love opens its home too.”

Iyer said he received a couple of phone calls from queer people in northern India who had been attacked. He offered to pay for their travel to Mumbai or any other city, but they eventually told him they found a place where they would be safe.

“It just reinstates our collective faith in humanity and asserts that there are kind people everywhere,” said Iyer. “The community stands united with each other against terror.”

He stressed “intersectional realities make us most vulnerable” and “that’s why we need to rise up and be the best of who we are as queer humans.” Iyer told the Blade that other queer activists in India are trying to do just that, albeit silently, by opening their homes to people who have been targeted. 

“Anish Gawande, the queer spokesperson of the Nationalist Congress Party, has been working hard to restore peace in the valley,” he noted. “He has been doing good work in the Kashmir Valley for several years now. I truly admire his courage and candor. But truly, it’s the everyday queer Indian who advocates for kindness who matter.” 

“They would not be known to all and sundry, may not have a fan following or several followers on social media, but they have it in them to open their homes and their world to those affected,” added Iyer. “Sometimes, love doesn’t cause outpouring visibility, sometimes it silently protects and creates homes with a beating heart.”

Gawande has worked in Kashmir since 2012, running a program for Kashmiri journalism students and an art residency. 

He acknowledged to the Blade the increase in violence against Kashmiri students. Gawande also said LGBTQ Kashmiri students face unique challenges because they are a “minority within a minority.”

“In these difficult times, several activists like Harish Iyer have come forward to offer their support to young Kashmiri LGBTQ students who are afraid for their own safety,” he said. “The intent of the terrorists was to divide us — we cannot let their strategy succeed. I am incredibly grateful to so many members of the queer community and allies who have stepped forward to help all Kashmiris in this difficult time.”

Gawande said he has been supporting the efforts of student leaders, including Nasir Khuehami of the J&K Students Association, who has been leading efforts to ensure Kashmiris across India remain safe and secure. Gawande also said government officials, politicians, and law enforcement are working to protect the students.

“I am grateful to both the central government and state governments across the country for their prompt assistance in this matter,” said Gawande. “In these difficult times, when emotions run high, we remain united against hate.” 

“Today, attempts are being made to create divides between Indians and Kashmiris, between Hindus and muslims,” he added. “We must stand up against such attempts in one voice.” 

Gawande last weekend traveled to Srinagar, the Kashmiri capital, and led multi-faith prayer services in temples, churches, gurdwaras (Sikh places of worship), and dargahs (shrines) “to mourn those who lost their lives in Pahalgam and to send out a message of communal harmony.”

“When attempts are being made to divide us on religious grounds, we must unite through religion,” he said.

Gawande also spoke directly to Kashmiri LGBTQ students, urging them to reach out to the J&K Students Association. He said his New Delhi home and his party’s offices across the country are “also available to those who need a safe space or a place to grieve.”

“In this time of grief, where we are all mourning the dastardly loss of life, it is important to stand up for what is right,” said Gawande. “Queerness has taught me that we have two kinds of families — those of birth and of choice.”

“Kashmir holds a special place in my heart, and when the well being of those who I consider family is under threat, there is no question of even thinking about any potential jeopardizing of my own safety,” he added.

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