Religious beliefs cannot dictate marriage laws – LEGABIBO
Spira Tlhankane | Monday November 2, 2026 06:00
In a legal confrontation that places religious freedom and constitutional supremacy under the spotlight, the organistion argues that religious beliefs cannot be allowed to determine who enjoys constitutional rights in Botswana. In heads of argument filed before the High Court on October 15, 2026, it says the government cannot invoke the country's predominantly Christian traditions to deny gay and lesbian couples access to civil marriage. The organisation maintains that while religious beliefs deserve constitutional protection, they cannot be used as a weapon to restrict the rights of others. LEGABIBO, represented by Rantao Attorneys, contends that constitutional rights cannot be subjected to a popularity contest.
'Constitutional morality requires fidelity to the Constitution's text, values and institutions, including the universal rights secured by section 3. Social morality, by contrast, may reflect prevailing opinion,' the human rights group submits. The argument forms part of the ongoing legal battle involving Bonolo Ompile Selelo and Tsholofelo Seele Kumile, who are challenging the government's refusal to register their intended marriage. LEGABIBO has joined the proceedings as the third applicant, while the Botswana House of Prayer and Transformation, Dingwetsi Association of Botswana and Evangelical Fellowship of Botswana are amongst the respondents. The organisation argues that the State's reliance on religious and cultural considerations raises fundamental questions about whether constitutional rights can be restricted simply because the majority disapproves of their exercise.
It maintains that the Constitution exists partly to protect minorities against precisely such restrictions. Drawing on constitutional jurisprudence, LEGABIBO argues that courts have a duty to uphold fundamental rights even when doing so runs contrary to prevailing social attitudes. 'Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour,' it says. The passage, drawn from comparative constitutional authority cited in its submissions, reinforces LEGABIBO's argument that judges must decide constitutional disputes on legal principles rather than popular sentiment. The organisation further contends that allowing religious objections to dictate civil marriage eligibility would effectively permit one section of society to impose its beliefs on another. It draws a distinction between civil marriage, which is regulated by the State, and religious marriage ceremonies governed by individual denominations and their beliefs. According to LEGABIBO, recognising same-sex civil marriages would not compel churches or religious leaders to solemnise unions contrary to their doctrines.
The organisation argues that the constitutional protection of religious freedom cannot automatically translate into a power to deny other citizens access to State-regulated institutions. LEGABIBO also challenges the suggestion that preserving traditional family structures provides sufficient justification for excluding same-sex couples. It maintains that constitutional protection of family life cannot be confined to relationships that conform to prevailing social or religious expectations. The organisation further argues that the government's reliance on section 15(4)(c) of the Constitution, which provides exceptions concerning marriage and other matters of personal law, does not automatically shield discriminatory legislation from constitutional scrutiny. It insists that any limitation of fundamental rights must be justified within the broader constitutional framework.
The submissions also place the judiciary's independence at the centre of the dispute. LEGABIBO argues that courts cannot abdicate their constitutional responsibility merely because an issue is politically sensitive or socially controversial. The organisation relies on previous Botswana judgments recognising the rights of sexual minorities, including the landmark Motshidiemang decision, to argue that constitutional protection cannot be withdrawn on grounds of public disapproval. It maintains that government must demonstrate a legitimate constitutional purpose for excluding same-sex couples from civil marriage, rather than relying on religious sentiment or longstanding social practices.
The High Court is being asked to determine whether the Marriage Act permits same-sex marriages and, alternatively, whether their exclusion violates constitutional guarantees. The case could test the boundaries between religious freedom, majority opinion and constitutional protection of minority rights in Botswana.