Gov’t defends refusal to recognise same sex marriage

Mpho Mokwape | Monday June 15, 2026 06:00

The government's position is contained in court papers filed in response to a legal challenge brought by two women who are seeking to marry under Botswana's Marriage Act. At the centre of the dispute is a decision by the Department of Civil and National Registration, communicated in a letter dated May 8, 2025, informing the applicants that “marriage in the manner you want is not supported by the law.” The applicants have challenged the decision, arguing that it was unlawful and unconstitutional. However, in its answering affidavit, the State maintains that the refusal was justified under existing legislation.

According to the government, the Marriage Act clearly contemplates marriage only between a man and a woman. The State relies heavily on provisions of the Act that refer to a “bridegroom” and a “bride,” arguing that the language demonstrates Parliament's intention regarding who may enter into a civil marriage. Government lawyers contend that the Act does not provide for marriages between persons of the same sex and that officials within the Department of Civil and National Registration were therefore unable to process the applicants' request.

“No marriage between persons of the same sex can lawfully be solemnised under the current legal framework in Botswana,” argues the government. According to the answering affidavit, any marriage officer who purported to solemnise such a marriage would be acting contrary to the Marriage Act and could be committing an offence under the legislation. The government rejects the applicants' interpretation of section 10(2) of the Marriage Act, which forms part of the proceedings before the court.

The applicants argue that the provision should either be interpreted as including same-sex couples or, alternatively, that any exclusion would be unconstitutional. The State disagrees and argues that it is impermissible to interpret the section as extending to same-sex unions.

Government lawyers also reject suggestions that the refusal letter was procedurally unfair or lacked sufficient reasons. The applicants have argued that officials failed to identify the legal basis for the decision and did not adequately explain why their marriage could not proceed. However, the State maintains that the reasons given were sufficient in the circumstances and that the department was entitled to communicate its decision in the manner it did.

A further point of dispute concerns legal advice reportedly obtained before the decision was made. According to the government's court papers, advice received in relation to the matter is protected by attorney-client privilege and is therefore not subject to disclosure.

The State argues that the fact that legal advice was sought and obtained does not make the contents of that advice available to the applicants. The government has also moved to counter the constitutional claims raised in the case. The applicants contend that the refusal infringed rights protected under sections 3, 7, 12, 13 and 15 of the Constitution, including rights relating to equality, dignity, expression and association. In response, the State argues that those rights were not violated by the department's decision.

According to the answering affidavit, the applicants were not denied equal protection under the law, were not subjected to inhuman or degrading treatment and were not prevented from exercising their rights to freedom of expression or association. The government further relies on section 15(4)(c) of the Constitution, which permits laws that differentiate in matters relating to marriage and other specified areas.

The State argues that this constitutional provision supports its position that distinctions relating to marriage are recognised within the constitutional framework. Government lawyers also point to the absence of any judicial precedent recognising same-sex marriage in Botswana. The answering affidavit states that no court in the country has held that same-sex marriages are lawful under existing legislation.

The State also argues that no Botswana court has ruled that distinctions relating to marriage are automatically prohibited by the Constitution. The case comes several years after Botswana's courts delivered landmark rulings on the rights of sexual minorities, including the Court of Appeal's decision in Attorney General v Motshidiemang, which upheld the decriminalisation of consensual same-sex relations.

However, the government argues that those decisions did not legalise same-sex marriage and should not be interpreted as doing so. Meanwhile, in the proceedings, the High Court is being asked to determine whether the refusal to publish banns was lawful and whether Botswana's constitutional protections require a different interpretation of the Marriage Act. The proceedings also raise broader questions about the relationship between constitutional rights and legislation governing marriage.

When the case finally comes before the court, a ruling in the matter could have significant implications for how marriage laws are interpreted in Botswana and for future applications by same-sex couples seeking legal recognition of their unions.