LEGABIBO says same-sex marriage exclusion is unconstitutional
Mpho Mokwape | Monday June 15, 2026 06:00
The rights organisation has made an application before the Gaborone High Court to be joined in the proceedings filed in the ongoing case brought by Bonolo Omphile Selelo Tsholofelo Seele Kumile and another applicant. The respondents in the case are the Acting Director of Civil Registration and the Attorney General.
At the centre of the dispute is a decision by the Department of Civil and National Registration to refuse the publication of banns for the couple's intended marriage. In a letter dated May 8, 2025, the department informed the couple that “marriage in the manner you want is not supported by the law.”
LEGABIBO argues that the refusal amounts to discrimination and violates rights protected by the Constitution, including dignity, equality, freedom of expression and freedom of association. “The issue at the core of this matter is whether the State may single out a class of adult citizens, defined by the sex of the persons they love and wish to marry, and exclude them from one of the law's central civil institutions,” the organisation states in its filing.
According to LEGABIBO, the State's position effectively denies same-sex couples access to legal recognition and protections available through civil marriage. The organisation argues that same-sex couples are excluded from rights and benefits associated with marriage, including legal status, family protections and other consequences that flow from a recognised civil union.
Court papers show that the government is opposing the challenge and maintains that Botswana's Marriage Act only contemplates marriage between a man and a woman. The State argues that references in the law to a “bridegroom” and a “bride” demonstrate that marriages between persons of the same sex cannot be solemnised under the Act.
The government lawyers also reject allegations that constitutional rights have been violated and contend that the Constitution permits laws that differentiate in matters relating to marriage. But LEGABIBO disputes that interpretation and argues that gendered language in the Marriage Act cannot automatically be used to exclude same-sex couples from marriage. “The use of inherited gendered terminology cannot, without more, be elevated into an exclusionary rule that denies an entire class of citizens access to civil marriage,” the organisation says.
The filing further argues that constitutional protections against discrimination extend beyond categories specifically listed in the Constitution and include discrimination based on sexual orientation. LEGABIBO relies heavily on previous court decisions, including the Court of Appeal's ruling in Attorney General v Motshidiemang, which decriminalised consensual same-sex relations and recognised constitutional protections for sexual minorities.
The organisation argues that the exclusion of same-sex couples from marriage is not merely symbolic but has practical consequences affecting legal security, social recognition and access to protections available to married couples. “Married opposite-sex couples receive the dignity of public recognition and the shelter of legal status as of right,” the filing states.
“Same-sex couples may love, cohabit, support one another, build homes together and plan a life together, but the law denies them the ordinary institutional security that it readily extends to others,” contends the rights group.
The original applicants are seeking to overturn the government's refusal to publish banns. They are asking the court to determine whether Botswana's marriage laws permit or unlawfully exclude same-sex couples. The case also raises broader constitutional questions about equality, discrimination and the legal recognition of same-sex relationships in Botswana.
Meanwhile, on the joinder application by LEGABIBO, they want the High Court to determine whether same-sex couples can legally marry in Botswana.
Court documents filed by LEGABIBO describe the decision as “striking in its brevity” and argue that the State cannot rely solely on references to “bride” and “bridegroom” in the Marriage Act to exclude same-sex couples from civil marriage. The organisation says the case raises questions that go beyond the two applicants and affect same-sex couples across Botswana.
It argues that the outcome could directly affect its members and the community it represents. “The Court will be asked to determine issues that bear directly on the rights, legal status and civic standing of same-sex couples in Botswana,” LEGABIBO states in its application.
The government, through the Acting Director of Civil Registration and the Attorney General, has opposed the main application. According to the answering affidavit referenced in LEGABIBO’s filing, the State argues that the Marriage Act contemplates marriage only between a man and a woman.
The State's position is that section 10 of the Marriage Act refers to a “bridegroom” and a “bride,” meaning marriages between persons of the same sex cannot be solemnised under Botswana law. It further argues that a marriage officer who attempted to conduct such a marriage would commit an offence under the Act.
Government lawyers also reject claims that the refusal violated constitutional rights. They argue that constitutional protections cited by the applicants, including equal protection, freedom of association and freedom of expression, were not infringed.
The State further relies on section 15(4)(c) of the Constitution, which permits certain laws that differentiate in matters relating to marriage. The original applicants are pursuing both judicial review and constitutional claims. They seek to have the refusal set aside on the grounds that it was unreasonable, irrational and unlawful. Alternatively, they argue that the decision violated constitutional rights protected under sections 3, 7, 12, 13 and 15 of the Constitution.
They are also challenging the interpretation of section 10(2) of the Marriage Act. If the court finds that the provision excludes same-sex couples, they argue that such exclusion would be unconstitutional.
LEGABIBO says it should be joined because the proceedings fall within its mandate to represent lesbian, gay and bisexual people in Botswana and to advocate for equal rights.
The organisation relies on previous Court of Appeal judgments in which courts recognised its role in advancing the rights and interests of sexual minorities.
In its filing, LEGABIBO argues that the case concerns “whether the State may single out a class of adult citizens, defined by the sex of the persons they love and wish to marry,” and deny them access to civil marriage.
The organisation also argues that exclusion from marriage has practical legal consequences because civil marriage provides legal recognition and protections relating to family life, property, inheritance and other rights associated with marriage.
The application cites several Botswana court decisions, including the Court of Appeal's 2021 judgment in Attorney General v Motshidiemang, which struck down laws criminalising consensual same-sex relations.
LEGABIBO argues that Botswana courts have already recognised that constitutional protections against discrimination are not limited to categories expressly listed in the Constitution and can extend to discrimination based on sexual orientation.
The organisation further submits that excluding same-sex couples from marriage amounts to discrimination because opposite-sex couples can access the marriage process while same-sex couples cannot.
The High Court, in time, will determine whether LEGABIBO should be joined as a party to the proceedings before considering the merits of the broader challenge.
If successful, the case could result in a judicial review of the government's refusal to publish banns for the couple's intended marriage and a constitutional ruling on whether Botswana's marriage laws permit or exclude same-sex marriages.