Two women (same-sex couple) challenging Botswana’s Marriage Act
The Gaborone High Court is poised to hear a landmark case brought forward by Bonolo Selelo and Tsholofelo Kumile, a same-sex couple challenging Botswana’s Marriage Act. The plaintiffs argue that the current legislation unlawfully bans same-sex marriages, violating constitutional protections.
The couple disclosed that their relationship began in October 2023, with an engagement following a year later. As they planned their wedding, they sought to formalize their union through a civil marriage under the Marriage Act, CAP 29:01, aiming to secure the legal rights and protections such a union affords.
In April, accompanied by two witnesses, Selelo and Kumile approached the Department of Civil and National Registration to register their marriage. They were denied and informed that Botswana law does not permit their union. Officials suggested they might consider marrying in South Africa, noting this was the advice given to other same-sex couples in similar circumstances.
The couple contends that marrying in South Africa would deny them the legal recognition and protections of marriage within their own country.
A 2007 research paper by Professor Nlerum S. Okogbule and colleagues, titled “Legislating Against Same-Sex Marriage in Africa: Cultural and Religious Values Trampling Human Rights,” highlights South Africa’s historic step to legalize same-sex marriage. On November 14, 2006, South Africa’s Parliament passed the Civil Union Bill, making it the first African nation, and the fifth worldwide, to legally recognize same-sex marriages.
“This step was taken consequent upon the decision of the country’s Constitutional Court in the case of Minister of Home Affairs and Another v. Fourie and Another, Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others,” the paper notes.
In that case, Marie Fourie and Cecilia Bonthuys, both women, sought legal recognition of their marriage. After the High Court denied their application, the Constitutional Court ruled that the existing marriage definition violated the Constitution by denying same-sex couples equal rights.
“In a judgment delivered on December 1, 2005, the Constitutional Court gave Parliament one year to remedy the situation by either amending the Marriage Act 25 of 1961 or enacting new legislation to allow gays and lesbians to marry.”
Botswana’s Marriage Act No. 18 of 2001, Chapter 29:01, mandates registration of all marriages within the country, except those contracted under customary law or religious rites such as Muslim or Hindu ceremonies. The act emphasizes registration for national statistics, development planning, and legal proof of marriage.
According to the U.S. Embassy in Botswana, there are two recognized forms of marriage: customary marriage, conducted in customary courts (“kgotla”) with local chief approval, and civil marriage under the Act, officiated by civil authorities and requiring registration with the National Registration (Omang) office.
“Although some people still choose to have a customary marriage ceremony, most people marrying in Botswana will register a marriage under the Act (a ‘common law’ marriage) to ensure that they receive the full legal benefits of marriage,” the embassy explains.
Kgosi Kebinatshwene Mosielele of the Bahurutshe tribe confirmed in an interview that Botswana’s customary law does not recognize same-sex marriages.
“Same-sex marriage is not recognized by our culture; we don’t even have the roles clear for that arrangement. For instance, it is a norm that a man pays a dowry for the woman. Same-sex marriage does not exist in Setswana culture. If it does become a law, then it should have roles prescribed; Patlo and Magadi, for instance,” Mosielele said.
He suggested that since same-sex marriage falls outside traditional law and norms, it might be regulated through the district commissioner’s office instead. “It would then mean that we should be taught by the interested parties on how it works. As a traditional leader, it does not exist in our books.”
In 2023, following a parliamentary debate on a bill to decriminalize same-sex relations, Evangelical Fellowship Botswana submitted a petition opposing such reforms. They warned that legalizing same-sex relationships would unleash “floodgates of immorality and abomination,” including same-sex marriage and changes to school curricula promoting those practices.
Despite this opposition, Botswana’s High Court declared laws criminalizing consensual same-sex relations unconstitutional in 2019.
While Botswana recognizes three forms of marriage, civil, customary, and religious, vit does not acknowledge same-sex unions. Human rights advocates and scholars argue this exclusion violates fundamental rights.
Lindsay Gus, in her Tulane Journal of International Affairs paper, “Legalizing Same-Sex Marriage: An Obligation Not a Decision,” asserts:
“While states’ laws that deny same-sex couples the opportunity to legally marry are discriminatory, does international human rights law provide for the right of gay and lesbian couples to marry? International human rights law creates a universal right to marriage that includes gay and lesbian couples and denying same-sex couples this right is a clear violation.”
Further, Article 8 of the Southern African Development Community (SADC), which Botswana ratified in May 2017, requires member states to address emerging gender concerns and enact measures ensuring equal rights and partnership status for women and men in marriage.
Lesbians, Gays, and Bisexuals of Botswana (LEGABIBO) regards the Selelo & Kumile case as a natural extension of Botswana’s evolving constitutional jurisprudence.
They highlight the Motshidiemang judgment, which affirmed sexual orientation as a protected characteristic under the Constitution and upheld LGBTQIA+ people’s rights to dignity, equality, and freedom from discrimination.
“The current marriage challenge raises the next constitutional question: whether equality and dignity are meaningful if they stop at the threshold of public recognition. Marriage is not simply a private arrangement; it is a public legal institution that confers status, protection, and social legitimacy.”
According to LEGABIBO, excluding same-sex couples from marriage perpetuates constitutional inequality that is increasingly indefensible, especially in light of prior rulings.
“Whether the courts are ‘ready’ is ultimately a matter for judicial determination. Botswana’s courts have encouragingly demonstrated independence, courage, and a commitment to constitutional supremacy over popular sentiment. The judiciary has shown that it is willing to interpret the Constitution as a living and breathing document, responsive to evolving understandings of equality and human dignity. In this context, the Selelo & Kumile case can be seen as building on constitutional principles already articulated by the courts, rather than making a sharp, unprecedented departure from established jurisprudence.”
LEGABIBO emphasizes that litigation is one tool among many for advocacy and social change, not a standalone solution. Court victories affirm rights but do not erase stigma, prejudice, or violence. Their Still We Stand report documents persistent discrimination and fear among LGBTQIA+ Batswana even after decriminalization.
The battle for marriage equality exposes these realities further. Since marriage is deeply embedded in cultural, religious, and social norms, it may provoke stronger backlash than decriminalization, which some framed as a “private” issue. Yet, LEGABIBO argues, “The possibility of backlash cannot be the measure of whether rights should be pursued. Constitutional rights are not contingent on social comfort.”
They call for a dual approach: vigorous legal advocacy alongside sustained public education, community engagement, and coalition-building. Litigation and social advocacy are complementary, not competing strategies. Courts can affirm equality in law, while civil society translates that legal equality into lived experience, addressing misinformation, supporting individuals and families, engaging faith and traditional leaders, and protecting LGBTQIA+ people from harm.
“Ultimately, the question is not whether society is ready, but whether the Constitution protects all people equally. Social readiness follows legal clarity, not the other way around.”
Success Capital, a local advocacy group, supports individuals challenging colonial-era laws that deny LGBTQ+ rights.
“Success Capital welcomes any Motswana who exercises their right to challenge inherited colonial laws that repress and deny human rights enjoyed by others,” they said.
They note that legal battles often require significant resources, leaving many marginalized queer individuals—especially in rural or economically disadvantaged communities—without protection. “It takes a citizen with resources for legal support to test the legal provisions and systems that continuously remind LGBTQ+ that they are not equally protected, represented, or respected by law.”
For example, while there are protections against employment termination based on sexual orientation or identity, there are no safeguards in recruitment or ongoing employment. Domestic violence laws exist, but hate crimes, gender-based violence, hate speech, and economic retaliation against queer activists persist, fueled by patriarchal, ableist, and classist systems.
“Urgent human rights priorities impacting Queer Batswana remain unaddressed. No parliamentarian, councilor, traditional leader, or funding mechanism focuses on the socioeconomic dignity and sustenance of the majority of Queer Batswana.”
As Botswana grapples with these challenges, the outcome of the Selelo & Kumile case could mark a defining moment in the nation’s ongoing quest for equality and justice.
