Same-Sex Couple Pushes for Marriage

A same sex couple has approached the High Court challenging the constitutionality of the Marriage Act, arguing that it is unconstitutional for the Act to outlaw same-sex marriages. The couple, Bonolo Selelo and Tsholofelo Kumile, who have approached the High Court and their case has been scheduled for July 14 -15 before a full bench of the High Court. The marriage also faces opposition from Dingwetsi Association of Botswana, the Evangelical Fellowship of Botswana, and the Botswana House of Prayer and Transformation, who made a joinder application before the court on Friday.

The groups are expected to file their papers ahead of the commencement of the case commence. The organisations have argued that they stand for the sanity of marriage and protection of the current status quo, where a married couple comprises a woman and a man. However, in response to the joinder application, Selelo in an interview said it was awkward that the church and Dingwetsi Assoication of Botswana had chosen to oppose their marriage, noting that Batswana were known to have a history of fighting for love, and thus they would not give up to pressure.

The applicant cited the case of the founding President, Sir Seretse Khama, and his marriage to Ruth, which, despite opposition, eventually took place. “It is our culture to fight for love,” Selelo said. It is not the first time the country has faced cases of such nature, following the 2019 High Court decision that ruled that laws criminalising same-sex relations were unconstitutional, a decision upheld by the Court of Appeal in 2021.

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The court ruled that criminalisation of consensual same-sex activities violated constitutional rights of gays, lesbians, bisexuals, and transgender people, ruling in favour of a gay man, Letsweletse Motshidiemang, who had taken the state to task. When dismissing the government’s appeal of the High Court decision, the then President of the Court of Appeal, Justice Ian Kirby, said the High Court was correct to strike down Sections 164(a), 164(b), and 165 of the Penal Code (Cap 08:01) as they breached the fundamental rights to privacy. “Sections 164(a) and 164(c) of the Penal Code (Cap 08:01), Laws of Botswana, are hereby declared ultra vires sections 3, 9, and 15 of the Constitution and are accordingly struck down. At present, they serve only to stigmatise gay men unnecessarily, which has a harmful effect on them, and as far as I am aware, there has never been any prosecution of a woman or even any thought of doing so, for the offence of sodomy,” he said.

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