Paper short abstract:

This paper analyses how Botswanan human rights defenders mobilized domestic, regional and international support to convince Botswanan courts that that the anti-homosexuality law that had been in place since the colonial era was unconstitutional.

Paper long abstract:

An enduring legacy of British colonialism in much of Africa is the existence of laws that prohibit homosexual acts. After former British colonies gained independence, these “sodomy laws” remained on the books across the region. In recent years, some countries, such as Uganda and Nigeria, have reinforced those laws, with others, especially Lusophone countries, have rescinded them via the parliamentary route. In several former British colonies, however, LGBT+ rights defenders have taken their governments to court to try to get these laws declared unconstitutional. They have so far been unsuccessful in Kenya, while cases are pending in Namibia and Mauritius. Botswana stands out as a country where human rights defenders have succeeded in using strategic litigation to secure a growing list of LGBT+ rights. In particular, the colonial “sodomy law” was struck down as unconstitutional in 2019, with the decision upheld on appeal in 2021.

Based in part on interviews conducted in Botswana and South Africa in February 2023, this paper analyses how Botswanan human rights defenders fostered and drew on domestic, regional and international support for their strategic litigation. Among other issues, it examines how human rights defenders’ extralegal measures, including resource mobilization and the framing of the issues, helped influence the outcome of the court cases. In doing so, it traces how Botswanan LGBT+ rights-focused actors benefited from the expertise and financial resources of allies at home, elsewhere in Southern Africa, donor countries and international nongovernmental organizations, while maintaining ownership of the process.