Two women (same-sex couple) challenging Botswana’s Marriage Act The Gaborone High Court is poised to hear a landmark case brought forward by Bonolo Selelo and Tsholofelo Kumile, a same-sex couple challenging Botswana’s Marriage Act. The plaintiffs argue that the current legislation unlawfully bans same-sex marriages, violating constitutional protections. The couple disclosed that their relationship began in October 2023, with an engagement following a year later.
As they planned their wedding, they sought to formalize their union through a civil marriage under the Marriage Act, CAP 29:01, aiming to secure the legal rights and protections such a union affords. In April, accompanied by two witnesses, Selelo and Kumile approached the Department of Civil and National Registration to register their marriage. They were denied and informed that Botswana law does not permit their union.
Officials suggested they might consider marrying in South Africa, noting this was the advice given to other same-sex couples in similar circumstances. The couple contends that marrying in South Africa would deny them the legal recognition and protections of marriage within their own country. Okogbule and colleagues, titled “Legislating Against Same-Sex Marriage in Africa: Cultural and Religious Values Trampling Human Rights,” highlights South Africa’s historic step to legalize same-sex marriage.
Read Full Article on Weekend Post
[paywall]
On November 14, 2006, South Africa’s Parliament passed the Civil Union Bill, making it the first African nation, and the fifth worldwide, to legally recognize same-sex marriages. “This step was taken consequent upon the decision of the country’s Constitutional Court in the case of Minister of Home Affairs and Another v. Fourie and Another, Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others,” the paper notes.
In that case, Marie Fourie and Cecilia Bonthuys, both women, sought legal recognition of their marriage. After the High Court denied their application, the Constitutional Court ruled that the existing marriage definition violated the Constitution by denying same-sex couples equal rights. “In a judgment delivered on December 1, 2005, the Constitutional Court gave Parliament one year to remedy the situation by either amending the Marriage Act 25 of 1961 or enacting new legislation to allow gays and lesbians to marry.” Botswana’s Marriage Act No.
18 of 2001, Chapter 29:01, mandates registration of all marriages within the country, except those contracted under customary law or religious rites such as Muslim or Hindu ceremonies. The act emphasizes registration for national statistics, development planning, and legal proof of marriage. According to the U.S.
Embassy in Botswana, there are two recognized forms of marriage: customary marriage, conducted in customary courts (“kgotla”) with local chief approval, and civil marriage under the Act, officiated by civil authorities and requiring registration with the National Registration (Omang) office. “Although some people still choose to have a customary marriage ceremony, most people marrying in Botswana will register a marriage under the Act (a ‘common law’ marriage) to ensure that they receive the full legal benefits of marriage,” the embassy explains.
[/paywall]
