Botswana: Same-Sex Couple Challenges Marriage Act

Gaborone — A same sex couple, Bonolo Selelo and Tsholofelo Kumile, has approached the High Court on Friday, challenging the constitutionality of the Marriage Act, arguing that it is unconstitutional for the Act to outlaw same-sex marriages.

The case has been scheduled for July 14-15, before a full bench of the High Court. However, the proposed same sex marriage also faces stern opposition from Dingwetsi Association of Botswana, the Evangelical Fellowship of Botswana, and the Botswana House of Prayer and Transformation, through joint application also made before court on Friday.

The organisations stance is for the sanity of marriage and protection of the current status quo, where a married couple comprises a woman and a man. The opposing groups are to file their papers before commencement of the case in July.

However, in response to the joinder application, Selelo said it was awkward that the church and Dingwetsi 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.

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“It is our culture to fight for love,” Selelo said.

The case follows 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. 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.

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.

The two sections, he said outlived their usefulness and served only to allow law enforcement agents and others to become keyhole peepers and intruders into the private space of citizens, which he said was neither in the public interest nor in the nature of Batswana.

He noted that many countries had recognised the right to same-sex relationships and had international instruments to which Botswana was a party, such as the Universal Declaration of Human Rights of the United Nations and the International Covenant on Civil and Political Rights. BOPA

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