sexual health and human rights in the african region - The ICHRP

Botswana in Kanane v The State, 310 and the constitutional amendment in Uganda
to proscribe same-sex marriages are also reasons for suggesting that African
countries will be slow to recognize sexual orientation as a protected ground.
[74] The main constitutional issue in S v Banana was whether the crime of sodomy -
sex between consenting males - should still be criminalized under common law
in the light of section 23 of the Zimbabwean Constitution which provides a right
not to be unfairly discriminated against, The majority of the Supreme Court led
by Justice McNally ruled to maintain the crime. In the opinion of the majority,
the Constitution of Zimbabwe and its equality clause did not have the effect of
decriminalizing consensual anal intercourse between males regardless of
whether it was performed between consenting males in private. According to
Justice McNally, Zimbabwe was 'more conservative than liberal' in the matter of
sexual behaviour and its social norms and values were not pushing for
decriminalization of sodomy. 311 The decriminalisation of sodomy was a matter
for Parliament to consider if it so wished rather than one for courts as courts are
not accountable to the electorate and thus have no democratic mandate. It would
appear that the majority of the Supreme Court failed to appreciate the special
role of a constitution in protecting minorities, including sexual minorities. In the
end, deference to populist opinion, and perforce populist prejudice, rather than
the constitutional imperative to protect minorities held sway in Justice McNally’s
reasoning. 312
[75] In Kanane v The State 313 the High Court of Botswana held that provisions of the
Penal Code of Botswana which criminalized sex between consenting adult males
as acts ‘against the order of nature’ were constitutionally valid and not
discriminatory on the ground of sex under sections 3 and 15 of the Constitution
of Botswana. Section 3 of the Constitution of Botswana guarantees nondiscrimination
on the ground of ‘gender’. According to the decision of the Court
310 Kanane v The State Criminal Appeal 9 of 2003 (2003) 2 BLR 67 (Court of Appeal of Botswana).
311 Ibid 933.
312 The case was decided by a majority of 3:2. The minority led by Justice Gubbay (then Chief Justice) took
a generous view of equality. Justice Gubbay said that the retention of the crime of consensual sodomy
was not consistent with the values of a democratic society. He based his reasoning on the equality
provision in the Zimbabwean Constitution that, inter alia, outlaws unfair discrimination. He drew
support from foreign law, including South African constitutional jurisprudence. He also drew support
from equality provisions and interpretations thereof and international human rights instruments,
including the Covenant on Civil and Political Rights and the European Convention on Human Rights. In
Justice McNally’s opinion, since anal or oral sexual acts between men and women or consensual sex
between women did not constitute an offence, it was arbitrary sexual and gender discrimination to
proscribe male-to-male sexual acts. Moreover, whilst a segment of the majority of people who have
heterosexual relationships find male-to-male sexual acts morally unacceptable, courts could not be
dictated to by the public. Social activists and marginalised members of society were entitled to protection
under the Constitution.
313 Kanane v The State 1995 BLR 94 (High Court of Botswana).
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