According to the code, same-sex relationships are “against the order of nature.” The code stated that homosexuality should be punishable by between two and seven years in prison.
Announcing his ruling on Tuesday, Justice Michael Leburu said discrimination has no place in Botswana.
“A democratic society is one that embraces tolerance, diversity, and open-mindedness," he said.
He added that continuing to criminalise sexuality and gender identity holds societies back from reaching their full potential, saying: “Societal inclusion is central to ending poverty and fostering shared prosperity.”
The ruling by Justice Leburu comes after Letsweletse Motshidiemang, a 21-year-old student at the University of Botswana, took on the law by bringing the case to court in March.
“I am in a sexually intimate relationship with a man. I have no doubt that this will be the case for the rest of my life. My friends, roommates at the University of Botswana have accepted me, even at the University of Botswana I feel free and accepted,” he said at the time.
“By virtue of one or more of these provisions of the law, I am prohibited from expressing the greatest emotion of love through the act of enjoying sexual intercourse with another consenting adult male that I am sexually attracted to and who is also sexually attracted to me, as consenting adults,” he said.
In many parts of the world, LGBTQ+ people are rejected, attacked, and discriminated against. In Africa, the discrimination is often fuelled by governments that continue to criminalise same-sex relationships.
At the moment, only 24 out of 54 countries in the continent recognise LGBTQ+ people’s right to exist and thrive. Meanwhile, last month, Milimani high court in Nairobi, Kenya, ruled against decriminalising same-sex relationships.
Botswana joins South Africa, Angola, Mozambique, Cape Verde, and São Tomé in decriminalising same-sex relationships.
"This judgement can make a massive change for our lives. This is what excites me the most. The judgement means so much,” said Anna Mmolai-Chalmers, coordinator of at the LGBTQ rights group Legabibo.
She added: “The court has upheld our dignity, our privacy, and our liberty ... It means freedom.”
