27 Oct 2026

The High Court has been urged not to strike down Section 10(2) of the Marriage Act in a bid to allow same-sex marriages, but instead refer the matter to Parliament for legislation. 

Appearing before a full bench of the High Court on Friday, state attorney Mr Mboki Chilisa said  striking down the provision would create a gap in the law without automatically legalising same-sex marriages.

 The case was brought by Bonolo Selelo and Tsholofelo Kehumile, supported by the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO), who want the proviso declared unconstitutional. 

The applicants argue that the Act infringed on their rights to freedom of association and dignity and discriminates against them.

He said the proposed remedy would leave a lacuna in the Act, which would be prejudicial to the public interest. Mr Chilisa submitted that the appropriate remedy would be to create a legal framework recognising the union of persons seeking to enter into same-sex marriages.

“The appropriate remedy would be the creation of a right for the applicants to enter into a union that is also recognised by law,” he said. He proposed that Parliament should address the issue through an amendment to the Marriage Act or the enactment of separate legislation.

“This court itself cannot legislate, and this cannot achieve the results of what the applicants seek,” he added. Mr Chilisa said the court could convey to Parliament that the Marriage Act made no provision for same-sex unions and that legislative intervention was necessary to address the alleged unconstitutionality.

 He further argued that the law did not criminalise the applicants for expressing their love for each other. On the question of privacy, he said there had been no constitutional breach, arguing that privacy concerned choices and activities undertaken within one’s private space.

 He added that the applicants were free to express affection in public or private. Regarding freedom of association, Mr Chilisa said the applicants were free to associate, but what they sought was legal recognition.  “All the applicants need is to have legal status,” he said, adding that such recognition would address their concerns about dignity.

Advocate Reginald Wills, representing the Evangelical Fellowship of Botswana, argued that redefining marriage would not be in the best interests of society.

“Our client holds a very deep belief of what marriage is supposed to be,” he said, adding that marriage was an important pillar of the community. He argued that same-sex marriages were excluded from the Marriage Act and that the marriage officer was therefore correct to refuse to solemnise the union. Advocate Wills maintained that marriage was between one man and one woman and was centred on children.  He further argued that marriage was rooted in traditional Christian beliefs and that his client expected the court to define and protect the institution.

Attorney Mr Kago Mokotedi, appearing as amicus curiae (friend of the court), argued that a marriage officer’s refusal to register the applicants’ marriage could not be justified merely by stating that it did not comply with the law. 

“Decisions must come to conclusions and must have reasoning,” he said. Mr Mokotedi said the Constitution guaranteed equality and that the applicants had a right to be different without being penalised because the majority preferred heterosexual marriages. “Plurality is a value of a liberal democracy,” he said, adding that religious arguments should not influence court’s decision because Botswana’s Constitution was secular.

For LEGABIBO, attorney Mr Tshimo Rantao said it was not in dispute that the applicants had been refused permission to publish banns of marriage.

He said the first and second respondents had argued that the court should refrain from interpreting the provision in a manner that would permit same-sex marriages or striking it down. However, Mr Rantao maintained that the court had the power to determine the matter, including striking down the contested provision.

He said the application sought constitutional protection and enforcement of the applicants’ rights.

Mr Rantao said the applicants contended that Section 10(2) of the Marriage Act did not exclude same-sex couples. However, if the court found that it prohibited such marriages, they argued that the provision violated their constitutional rights and should be struck down. Judgment in the matter is scheduled for April 2, 2027. ENDS