The High Court of Botswana has set April 2, 2027, as the date for delivering a judgment in a same-sex marriage case. The case involves two women, Bonolo Selelo and Tsholofelo Kumile, who are challenging the refusal by marriage officers to register their marriage. The applicants argue that Section 10(2) of the Marriage Act violates several sections of the Constitution of Botswana by denying them equal protection of the law and marital rights.
The applicants, represented by Wim Trengove, argue that the Marriage Act's language is merely an illustrative formula for secular weddings and does not expressly ban same-sex marriage. They claim that the Act must be interpreted in a way that does not prefer one religion or one sexual identity over others. The applicants are seeking a constitutional challenge to the decision of the Department of Civil and Registration, which refused to register and publish the banns of their intended marriage.
The defendants, represented by attorneys Mboki Chilisa, Reginald Wills, and Pako Moakofhi, oppose the application, arguing that the court does not have the power to create legislation that would permit same-sex marriages. They claim that the Marriage Act provides for one man-one woman and that only Parliament can legislate on same-sex marriages. The defendants also argue that granting same-sex marriages would coerce Christian marriage officers against their religious conscience.
The case is supported by minority rights advocacy group Lesbians, Gays & Bi-Sexuals of Botswana (LEGABIBO) and Dr Onthatile Olerile Moeti as friends of the court. LEGABIBO's representative, Tshiamo Rantao, argues that the Marriage Act's gender-specific language and procedural safeguards must be respected, and that law making belongs to the elected Parliament under its democratic mandate.
The Department of Civil and Registration refused to register and publish the banns of the couple's intended marriage in a letter dated May 8, 2025. The applicants claim that this decision was unreasonable, irrational, and illegal. They are seeking judicial review and a constitutional challenge to the decision, claiming that it violates several sections of the Constitution of Botswana.
The High Court has allocated a full bench of five judges, led by Chief Justice Gaolapelwe Ketlogetswe, to hear the matter due to its constitutional significance. The case is divided into three parts: an administrative-law challenge, a constitutional challenge to the refusal, and a constitutional challenge against the validity of Section 10(2) of the Marriage Act.
The judgment will have significant implications for the rights of same-sex couples in Botswana. The applicants and defendants have presented their arguments, and the court will now consider the evidence before delivering a judgment in April 2027. The case highlights the complexities of balancing individual rights with cultural and religious values in a democratic society.
Key points
- The High Court of Botswana will deliver a judgment on a same-sex marriage case on April 2, 2027.
- The applicants argue that Section 10(2) of the Marriage Act violates several sections of the Constitution of Botswana by denying them equal protection of the law and marital rights.
- The defendants oppose the application, arguing that the court does not have the power to create legislation that would permit same-sex marriages.
