Churches, Dingwetsi warn court against redefining marriage

Spira Tlhankane | Monday November 2, 2026 06:00

In heads of argument filed before the High Court on October 16, 2026, the bodies argue that doing so would undermine the country's cultural identity, traditional family structures and Parliament's authority to determine the legal definition of marriage.

The Botswana House of Prayer and Transformation and Dingwetsi Association of Botswana have mounted a spirited defence of the country's existing marriage laws, insisting that marriage, as contemplated under the Marriage Act, is a union between a man and a woman. They contend that the Judiciary cannot assume Parliament's legislative powers merely because same-sex couples are demanding recognition of their relationships.

The organisations, cited as the third and fourth respondents, are opposing an application by Bonolo Ompile Selelo and Tsholofelo Seele Kumile, who are challenging the government's refusal to register their intended marriage. The couple, supported by the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO), argues that the refusal violates constitutional guarantees of equality, dignity, privacy and freedom from discrimination. However, the religious organisations maintain that the applicants are effectively asking the court to create a new legal institution that Parliament never authorised. 'Marriage has never and cannot be defined to include same sex couples, more especially in Botswana,' the respondents submit.

They argue that the country's marriage legislation was deliberately structured around the traditional understanding of marriage between a man and a woman, with specific references to a bride, bridegroom, husband and wife. According to the respondents, these expressions are not merely ceremonial language but reflect the substantive legal relationship contemplated by Parliament. 'The legislature, and not the courts, is the appropriate forum to redefine Marriage in a democratic society,' they argue. The organisations further contend that the applicants are attempting to persuade the judiciary to disregard government's legitimate interest in regulating marriage and determining its legal boundaries. They maintain that although courts have a constitutional responsibility to protect fundamental rights, that responsibility does not automatically empower judges to create legal arrangements that existing legislation does not recognise.

'The Court must determine the matter by applying the Constitution and interpreting the Act, not by substituting a preferred social policy for the governing law,' the respondents submit. Their opposition also introduces a potentially contentious argument concerning children and the traditional family structure. The organisations maintain that the interests of children should remain central when determining the legal meaning and purpose of marriage. 'The best interests of children should be the guiding interest in defining Marriage,' their submissions state.

They argue that the institution of marriage has historically been connected to family formation, biological parenthood and the protection of children. 'Depriving a child of its biological roots strictly on the basis of individualistic rights, disproportionately effects children and society at large,' the respondents contend. The organisations invoke the African Charter on Human and Peoples' Rights, arguing that its recognition of the family as a foundational unit of society reinforces the importance of protecting traditional family structures.

They further maintain that government has a legitimate interest in preserving the social and cultural understanding of marriage. However, the respondents expressly reject the suggestion that their opposition is based on a belief that Botswana is a Christian state or that the Bible independently determines constitutional law. 'Neither do the respondents submit that Botswana is a Christian state, that the Bible constitutes an independent source of binding civil law,' the court papers state. Instead, they argue that the historical, religious and cultural understanding of marriage is relevant when interpreting the legislation governing civil unions. The organisations also caution against adopting South Africa's constitutional approach to same-sex marriage, arguing that Botswana's constitutional framework places greater emphasis on balancing individual rights with community interests.

'This Court must not import the highly individualised approach of South Africa to rights. South Africa is not a model to emulate. The approach by the Batswanan Constitution and Courts has stood the country in good stead,' they submit. They argue that Botswana's Constitution reflects a distinctive balance between the protection of individual freedoms and the preservation of traditional cultural practices. The respondents further maintain that constitutional decisions recognising the rights of gay and lesbian people do not automatically establish a right to same-sex marriage.

They acknowledge the significance of the landmark Motshidiemang judgment, which decriminalised consensual same-sex sexual conduct, but argue that the decision did not determine the legal definition of marriage. According to the organisations, the courts must distinguish between protecting individuals against discrimination and requiring the State to recognise a particular relationship as a marriage.

They also challenge the applicants' reliance on section 44 of the Interpretation Act, which generally allows gendered statutory expressions to include the opposite sex. The respondents contend that this provision cannot be used to fundamentally alter the legal character of marriage under the Marriage Act. They maintain that the prescribed marriage formula, which requires a bride and bridegroom to take each other as husband and wife, reflects Parliament's intention to recognise heterosexual marriage. The organisations further argue that publishing marriage banns cannot independently create a right to a marriage that the law does not authorise. They defend the Registrar of Marriages' decision to refuse publication of the couple's banns, insisting that the official acted within the requirements of the existing legislation. The respondents also warn that recognising same-sex marriages through judicial interpretation could have far-reaching consequences for other areas of family law, including adoption, succession, matrimonial property and the legal status of children.

They argue that such consequences require comprehensive legislative consideration rather than judicial intervention. While acknowledging that the Constitution is supreme and that courts have the power to invalidate unconstitutional legislation, the organisations maintain that the applicants have failed to establish that the existing marriage framework violates their constitutional rights. They are asking the High Court to dismiss the application with costs, including the costs of two counsels.