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Botswana Court of Appeals upholds landmark decriminalization ruling

‘Today is a momentous day in history’

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GABORONE, Botswana — The Botswana Court of Appeals on Monday upheld a 2019 ruling that decriminalized consensual same-sex sexual relations in the country.

Five justices unanimously ruled sections of the Batswana Penal Code that criminalize homosexuality with up to seven years in prison “violated the right to privacy … the right to liberty, security of person and equal protection under the law … and the right to freedom from discrimination” under the country’s constitution.

Botswana’s High Court in 2019 unanimously ruled these provisions were unconstitutional.

The Batswana government appealed the landmark decision. The High Court heard the case last month.

Lesbians, Gays and Bisexuals of Botswana, which challenged the criminalization law with the support of the Southern Africa Litigation Center, applauded Monday’s ruling.

“Today is a momentous day in history, a victorious win in ascertaining liberty, privacy and dignity of the LGBTIQ persons in Botswana and definitely, this judgement sets precedence for the world at large,” says LEGABIBO CEO Thato Moruti. “Moreover, a new dawn for better education and awareness about the LGBTIQ issues. I anticipate that more engagement with various arms of government will also set a trajectory towards a more inclusive and diverse nation.”

Pan Africa ILGA in a tweet proclaimed Monday as a “beautiful day” in Botswana. UNAIDS described the ruling as “a great win for human rights.”

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Africa

Kenya bill seeks to ban gays from having children via surrogate

Country’s Senate expected to debate bill next month

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NAIROBI, Kenya — A bill that is currently before Kenyan lawmakers would prohibit gays and lesbians from using surrogate mothers to have children.

The proposed law — dubbed the Assisted Reproductive Technology Bill, 2019, passed last November by the National Assembly — seeks to assist individuals, including intersex people or couples unable to bear children due to infertility to procure surrogate mothers.

To lock out gays and lesbians, the MPs amended the bill by replacing “husband and wife” to “couple” under Kenyan law, which refers to a male and a female who are in an association that may be recognized as a marriage.

“Of the many amendments that have been carried, this one is the best. This is so that we be specific that in Kenya, we do not recognize marriages between people of the same gender,” MP David Ole Sankok stated during the debate in the National Assembly.  

Any gay or lesbian found guilty of using a surrogate mother to have a child risks a fine not exceeding Sh5 million ($50,000) or a jail term of not more than five years or both. The bill would also require a qualified medical doctor to certify that an individual is infertile before proceeding to find a surrogate mother.

This requirement is not only a big blow to thousands of gays and lesbians in Kenya but also hundreds of surrogate mothers like Mary and Rebecca in Nairobi who, through the Find Surrogate Mother public website, carry pregnancies for all couples including heterosexuals, gays, lesbians, single women and single men who want to have children.

The proposed law, which is the first of its kind in Kenya, also criminalizes engaging in surrogacy to make money. This means surrogate mothers will no longer carry pregnancies for any individual or couple whose infertility is not proved by a doctor.

Currently, the overall cost of surrogacy in Kenya is estimated at Sh4.5 million ($45,000).

“A person who contravenes the provisions of this section commits an offense and shall, upon conviction, be liable to a fine not exceeding Sh5 million ($50,000) or to imprisonment for a term not exceeding five years, or to both,” reads Clause 23 of the bill.

A special directorate under the Health Ministry would oversee surrogacy activities in the country. The bill requires a surrogate mother to be over 21 years old with at least one child.

The new law adds to other punitive laws against LGBTQ rights in the country.

The Kenyan Penal Code under Sections 162 and 165 criminalize consensual same-sex sexual relations viewed as “acts of indecency or unnatural offenses.” The Penal Code also forbids gays and lesbians from adopting children.  

The passing of the bill in November occurred barely four months after U.S. Transportation Sec. Pete Buttigieg and his husband Chasten broke the news of welcoming their twins to the world.

Buttigieg via a tweet said, “Chasten and I are beyond thankful for all the kind wishes since first sharing the news that we’re becoming parents. We are delighted to welcome Penelope Rose and Joseph August Buttigieg to our family.”

It remains unclear whether the couple had their babies via surrogate or if they adopted them.

Kenya, just like most African countries, has refused to recognize the rights of the LGBTQ community despite pressure from the group and Western countries.     

For instance, in 2015 President Uhuru Kenyatta during a joint press conference with the then-U.S. President Obama at the State House in Nairobi flatly rejected his visitor’s demand for the protection and promotion of gay and lesbian rights in the country.

Kenyatta insisted that though Kenya “shares a lot with the U.S., gay rights were not among them.” Homosexuality is considered both ungodly and against African culture on the continent.  

In July 2021, a coalition of 27 global companies like Microsoft, Google, Barclays, Standard Chartered, IBM, PricewaterhouseCoopers, American Express and Burberry demanded Kenya to fully recognize the rights of gays and lesbians for more billions of Kenyan shillings to be injected into the economy.

The global firms in a report dubbed “The Economic Case for LGBT+ Inclusion in Kenya” warned that the country loses between $65 million and $143 million annually because its discriminative environment was keeping away some tourists. Still, Kenya remained unbowed.   

Several rights groups like the National Gay and Lesbian Human Rights Coalition and UNAIDS has criticized the continued enactment of laws that discriminate against the LGBTQ community.

The National Assembly’s Health Committee, the sponsor of the surrogacy law, collected views from numerous key stakeholders in the health sector like the Intersex Persons Society of Kenya which has a population of 1,524 in Kenya as per the 2019 Census. However, the Gay and Lesbian Coalition of Kenya, (GALCK), was notably sidelined in the committee’s public hearings.

The Kenyan Senate is expected to debate the bill once it reconvenes on Feb. 8. The president would sign it if it passes.

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Senegalese lawmakers reject bill to further criminalize homosexuality

National Assembly members described measure as ‘bogus debate’

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DAKAR, Senegal — Lawmakers in Senegal have rejected a bill that would have further criminalized consensual same-sex sexual relations in the country.

Media reports indicate the majority of the Senegalese National Assembly on Dec. 25 issued a statement that described the measure as a “bogus debate.” Lawmakers on Wednesday formally tabled the bill.

Senegal is a former French colony in West Africa that borders Gambia, Mauritania, Mali, Guinea-Bissau and Guinea.

Article 319 of the Senegalese penal code states anyone convicted of “any indecent or unnatural act committed between individuals of the same sex” faces up to five years in prison and a fine of up to 1,500,000 CFA (West African CFA) francs ($2,579.70.) Souleymane Diouf, a spokesperson for Collectif Free du Sénégal, a Senegalese LGBTQ rights group, earlier this month told the Los Angeles Blade that “any LGBTI person” would face between five to 10 years in prison and a fine of between 1,000,000-5,000,000 CFA francs ($1,719.80-$8,599) under the bill.

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Senegal lawmakers seek to further criminalize homosexuality

Anti-LGBTQ rights group is behind measure

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DAKAR, Senegal — Lawmakers in Senegal plan to introduce bill that would further criminalize consensual same-sex sexual relations.

Souleymane Diouf, a spokesperson for Collectif Free du Sénégal, a Senegalese LGBTQ rights group, on Sunday told the Los Angeles Blade in an email the bill would add the “crime of homosexuality” to the provision of the country’s penal code that “already targets LGBTI people.”

Article 319 of the Senegalese penal code states anyone convicted of “any indecent or unnatural act committed between individuals of the same sex” faces up to five years in prison and a fine of up to 1,500,000 CFA (West African CFA) francs ($2,579.70.) Diouf told the Blade that “any LGBTI person” would face between five to 10 years in prison and a fine of between 1,000,000-5,000,000 CFA francs ($1,719.80-$8,599) if lawmakers approve the bill.

“It is paradoxical that people want to increase the penalties for homosexuality in our country, especially since there is already a legal arsenal against LGBTI people,” said Diouf.

Alioune Souare, a member of the Senegalese National Assembly, told Reuters he helped write the bill that was to have been introduced by the end of last week.

Diouf said Collectif And Samm Jikko Yi — an anti-LGBTQ group that roughly translates as the “Values Defense League” — is behind the effort to introduce the bill. It remains unclear whether Souare and/or other lawmakers have officially put forth the measure.  

Senegal is a former French colony in West Africa that borders Gambia, Mauritania, Mali, Guinea-Bissau and Guinea.

Senegal is among the dozens of countries in which consensual same-sex sexual relations are criminalized. Mauritania is one of a handful of nations in which homosexuality remains punishable by death.

Then-President Obama in 2013 discussed Senegal’s LGBTQ rights record with reporters after a meeting with Senegalese President Macky Sall that took place in Dakar, the country’s capital. The press conference took place a day after the U.S. Supreme Court struck down the Defense of Marriage Act.

“When it comes to how the state treats people, how the law treats people, I believe that everybody has to be treated equally,” said Obama. “I don’t believe in discrimination of any sort. That’s my personal view. And I speak as somebody who obviously comes from a country in which there were times when people were not treated equally under the law, and we had to fight long and hard through a civil rights struggle to make sure that happens.”

Editor’s note: Souleymane Diouf is a pseudonym. Colin Stewart of Erasing 76 Crimes, a website that documents the impact of criminalization laws around the world, translated Diouf’s responses to the Blade’s questions from French into English.

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