Govt Reviews Same Sex Marriage Law

Meaningful progress will depend on collective engagement among stakeholders, signalling that the national conversation on LGBTQ rights in Botswana is far from settled The government has not yet adopted a formal stance on homosexuality, while signalling that the contentious issue of same sex marriage could soon come under national scrutiny as the Marriage Act undergoes review. The state is currently embroiled in a legal battle against same sex couple Bonolo Selelo and Tsholofelo Kumile who appeared before the High Court on March 6 this year challenging the constitutionality of Section 10 (2) of the Marriage Act which denies them the right to marry. Speaking in Parliament, the Minister of Labour and Home Affairs, Pius Mokgware, clarified that while same sex relationships are no longer criminal, government policy remains undefined, placing the matter firmly in the hands of the courts and ongoing legislative processes.

“The Government has not adopted a position with regard to homosexuality. However, the Court of Appeal in 2021 upheld the High Court’s decision on the decriminalisation of same sex relationships,” the Minister said, referencing the landmark ruling that struck down sections 164 and 165 of the Penal Code. The judgment affirmed that criminalising consensual same sex intimacy violated constitutional rights to privacy, liberty and dignity.

While this ruling marked a significant shift in Botswana’s legal landscape, Mokgware acknowledged persistent public confusion over its implications. On the question of legalising same-sex marriage, government would not make any commitments. The current legal framework, under the Marriage Act, recognises unions strictly between a man and a woman.

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“My Ministry is currently reviewing the Marriage Act in line with the Constitution of Botswana, where consultations on issues such as this one will be entered into with various stakeholders,” the Minister stated. The Botswana Network on Ethics, Law and HIV/AIDS (BONELA) believes that refusal to recognise same sex marriage goes against Botswana’s human rights obligations under regional and international frameworks that uphold equality and non discrimination and privacy. “The Constitution of Botswana is founded on the principle that every person is entitled to fundamental rights and freedoms without discrimination. To deny a couple the right to marry and openly express their deepest love and commitment to one another is to deny them full humanity, equal citizenship and equal protection of the law,” BONELA recently stated.

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