Decriminalising Homosexuality

In 2019, Botswana and Kenya witnessed contrasting legal outcomes regarding the decriminalisation of same-sex sexual conduct, highlighting divergent paths and the varied impact of strategic litigation in advancing LGBT rights within diverse legal and socio-political contexts. This chapter will analyse the High Court of Kenya judgement that maintained the Penal Code provisions criminalising same-sex acts. This decision represented a considerable jurisprudential setback for Kenyan LGBT advocacy groups, underscoring the challenges inherent in challenging deeply entrenched colonial-era legislation through judicial means. Conversely, the High Court of Botswana issued a unanimous and landmark ruling that invalidated relevant sections of the Penal Code discriminatory and violative of fundamental constitutional rights and freedoms. These cases collectively highlight the complex interplay of legal precedent, constitutional interpretation, and civil society advocacy in shaping human rights landscapes. Thus, the chapter will examine the (un)successful strategic litigation employed in these cases and conclude with a discussion on the extent that same-sex marriage is achievable in both jurisdictions.