Two adult same sex women requested permission to marry each other from the government of Botswana. The litigants, Bonolo Selelo and Tsholofelo Kumile, were denied the right to have their marriage recognised by the Department of Civil and Registration. LEGABIBO, supported by SALC, applied to join the case as an interested party.
The Department of Civil and Registration, through a letter dated 8 May 2025 refused to register and publish the banns of the Applicants’ intended marriage. The litigants are requesting judicial review, claiming that the decision of the Department of Civil and Registration, as set out in the Banns Letter, was unreasonable, irrational, and illegal. The litigants are also seeking a constitutional challenge to the decision of the Department of Civil and Registration, claiming it violates sections 3 (Fundamental rights and freedoms of the individual), 7 (Protection from inhuman treatment), 12 (Protection of freedom of expression), 13 (Protection of freedom of assembly and association), and 15 (Protection from discrimination on the grounds of race, etc.) of the Constitution of Botswana.
The litigants seek an order that section 10(2) of the Marriage Act does not exclude same-sex couples and, if found to do so, that the said exclusion violates the applicants’ constitutional rights outlined above.
This case is divided into three parts;
i. Firstly, an administrative-law challenge through judicial review proceedings to the refusal,
ii. Secondly, a constitutional challenge to the refusal with reliance on sections 3, 7, 12, 13 and 15 of the Constitution, and
iv. Thirdly, a constitutional challenge against the validity of section 10(2) of the Marriage Act to the extent that it is found to exclude same sex couples.
The matter is not only about challenging the administration and the Marriage Act at its core, but this case is about whether the State can treat one group of adult citizens differently because of the sex of the person they love and want to marry and then argue that this does not affect their constitutional rights.
Background
In March 2024, the litigants became engaged and began arranging their marriage under Botswana law. They took steps ordinarily taken by couples intending to contract a civil marriage, including family involvement, engagement celebrations, and preparations for married life together.
In April 2025, the litigants went to the Department of Civil and National Registration, seeking to comply with the statutory process for publication of banns. They were told that the office could not assist because Botswana law did not permit the registration of a marriage between two women. The Department of Civil and National Registration and the Ministry explained to them that their type of marriage was “not allowed” and “not recognised,” without any reference to specific provisions of any law. They were even advised by an officer from the Department of Civil and National Registration that it would be best for them to leave the country and be wedded in South Africa.
The Department of Civil and National Registration argues that the litigants’ position is misconceived because the Department’s refusal was required by the Marriage Act, which claims that it applies to marriages solemnised in Botswana other than customary and religious marriages, and the Act plainly contemplates marriage only between a bridegroom (man) and a bride (woman).
They argue that Parliament passed the Marriage Act, and under that law, marriage notices (also called banns) cannot be published for a marriage that the Act does not allow. Since the Marriage Act does not permit marriage between two people of the same sex, such marriages cannot legally take place in Botswana. Any marriage officer who tries to perform a same-sex marriage would be breaking the law and committing an offence under the Act. The State argues that the refusal was lawful, reasonable, rational and constitutional because it was based directly on what the law says. The State argues that the litigants cannot rely on the Constitution to support their case because the constitutional right to equal protection does not apply to them because of section 15(4) of the Constitution.
The State further argues that the litigants were not subjected to inhuman or degrading treatment, were not stopped from expressing themselves, and that their freedom of association was not violated. The State says that “had Parliament intended to extend marriage to same-sex couples, it would have said so expressly” because the language/wording in the Act uses “bridegroom”, “bride”, “husband” and “wife”.
Grounds for LEGABIBO’s joinder
LEGABIBO was set up to protect LGBTIQ+ people from stigma, discrimination and exclusion and to lobby for legal reform. The applicant seeks to be joined because the proceedings may directly affect its membership. The impact of this case goes beyond the two litigants. It also affects the broader group of people the LEGABIBO is legally and constitutionally permitted to represent. LEGABIBO is in a position to draw the Court’s attention to matters that require detailed scrutiny to make its determination. The matter raises questions concerning dignity, equality, discrimination, association, expression, and access to the legal incidents of marriage. The LEGABIBO is especially well placed to assist the Court on those matters.
The matter violates constitutional rights sections 3 (Fundamental rights and freedoms of the individual), 7 (Protection from inhuman treatment), 12 (Protection of freedom of expression), 13 (Protection of freedom of assembly and association), and 15 (Protection from discrimination on the grounds of race, etc.) of the Constitution of Botswana.
Civil marriage provides a legal status through which spouses can jointly obtain or secure a range of protections, including property, maintenance, inheritance of spouses and children, next-of-kin recognition and decision-making, and family stability. Excluding same-sex couples from marriage makes them more vulnerable, less secure and more reliant on private legal arrangements than opposite-sex couples who are legally married.
At the High Court
Applications for joinder: LEGABIBO has filed a joinder in the matter. The matter was set down for hearing on 8 June 2026, but was postponed to 14 July 2026. This was because the other parties seeking to join the case as opposition had not filed their papers.
On 4 September 2026, the High Court ruled on applications by interested parties seeking to join the case. The Court admitted the Lesbians, Gays and Bisexuals of Botswana as the 3rd Applicant. In contrast, the Court admitted House of Prayer and Transformation, Dingwetsi Association of Botswana and the Evangelical Fellowship of Botswana as the 3rd, 4th and 5th Respondents, respectively. The court admitted Dr Onthatile Olerile Moeti as Amicus Curiae.
The matter will be heard before a full bench on 22 and 23 October 2026.
Case in the news
26 June 2025: The Botswana Gazzette
15 June 2026: Mmegi Online
5 September 2026: Mamba Online
Lorato Ke Lorato campaign
The Lesbians, Gays and Bisexuals of Botswana is represented by Rantao Attorneys, with support from the Southern Africa Litigation Centre.