Same-sex couple: Marriage ban makes us second-class citizens
Spira Tlhankane | Monday November 2, 2026 06:00
The couple, Bonolo Ompile Selelo and Tsholofelo Seele Kumile, argues that denying them marriage does not only rob them of dignity but also strips them of numerous legal protections enjoyed by heterosexual couples. In a potentially groundbreaking constitutional battle before the High Court, the duo is challenging the government's refusal to register and solemnise their marriage, insisting that Botswana's Marriage Act does not expressly prohibit same-sex unions.
The couple argues that even if the law is interpreted as prohibiting their marriage, such exclusion would be unconstitutional because it violates their fundamental rights to equality, dignity, privacy and freedom from discrimination. In their heads of argument filed on October 15, 2026, through Raseitshwane Attorneys, the applicants contend that government has failed to provide any legitimate justification for denying them marriage. 'Marriage and the legal recognition and consequences that flow there from are a direct gateway through which numerous legal rights, obligations, protections, fiscal advantages, and family status are acquired,' the applicants argue. They maintain that denying them access to marriage effectively excludes them from legal benefits and protections available to other couples.
The legal challenge follows a May 8, 2025 refusal by the Acting Director of Civil and National Registration to publish the banns for their intended marriage. According to the applicants, the Registrar justified the refusal on grounds that their marriage was not supported by law. However, the couple insists that the Registrar misinterpreted the Marriage Act and acted unlawfully by imposing a restriction that Parliament never expressly enacted. Their lawyers argue that the Act is gender-neutral in its provisions relating to the publication of marriage banns.
They further submit that references to 'bridegroom' and 'bride' under section 10(2) should not automatically exclude same-sex couples. 'The Marriage Act does not prohibit a marriage between the 1st and 2nd Applicants,' the court papers state. The applicants argue that the Registrar failed to interpret the legislation in accordance with constitutional principles requiring equal protection under the law. They also accuse the Registrar of failing to consider relevant legal provisions before rejecting their application. But beyond the interpretation of the Marriage Act, the couple is inviting the High Court to confront the broader constitutional implications of denying same-sex couples the right to marry.
They contend that excluding gay and lesbian couples from marriage effectively relegates their relationships to an inferior legal status. The applicants argue that government cannot simply invoke existing legislation to justify discrimination without demonstrating that the limitation serves a legitimate public interest. 'The resultant discrimination and limitation of the rights of the Applicants based purely on their sex and sexual orientation is arbitrary and irrational. It does not serve a legitimate governmental purpose,' their lawyers submitted. They further argue that allowing same-sex marriages would not interfere with the rights of heterosexual couples or undermine existing marriages.
The applicants rely heavily on previous constitutional decisions recognising the rights of gay and lesbian people, particularly the landmark Motshidiemang litigation, which resulted in the decriminalisation of consensual same-sex sexual conduct. They maintain that constitutional protections should extend beyond private relationships to include the legal recognition of marriage. Their submissions also challenge the government's reliance on section 15(4)(c) of the Constitution, which provides exceptions to certain protections against discrimination in matters including marriage. According to the applicants, those exceptions cannot be interpreted independently of the broader constitutional guarantees under section 3.
The Botswana House of Prayer and Transformation, Dingwetsi Association of Botswana and Evangelical Fellowship of Botswana are also respondents in the proceedings, while LEGABIBO is cited as the third applicant. The couple wants the High Court to review and set aside the Registrar's decision and order the publication of their marriage banns, paving the way for their marriage to be solemnised. Alternatively, they seek a declaration that the exclusion of same-sex marriages under section 10(2) of the Marriage Act is unconstitutional.