Selelo v Acting Director of Civil Registration is a pending case before the High Court of Botswana concerning the legal recognition of same-sex marriage in Botswana. It was brought in 2025 by Bonolo Omphile Selelo and Tsholofelo Seele Kumile, a female couple whose request to publish banns of marriage and subsequently marry had been refused. The couple seeks permission to marry under the Marriage Act, 2001 or, alternatively, seeks a declaration that section 10(2), which prescribes gendered language for the marriage ceremony, is unconstitutional. The government opposes the application, arguing that the Act permits marriage only between a man and a woman.
On 4 September 2026, the court admitted an LGBTQIA+ rights organisation and three opposing organisations as additional parties, and a law academic as an amicus curiae. The main hearing is scheduled for 22 and 23 October 2026.
Background Legal background In June 2019, Botswana's High Court decriminalised consensual same-sex sexual conduct in Motshidiemang v Attorney General. The Court of Appeal upheld decriminalisation in November 2021, affirming the invalidity of sections 164(a) and 164(c) of the Penal Code.Attorney General v Letsweletse Motshidiemang, Court of Appeal of Botswana, 29 November 2021, paragraphs 2–3 and 118. Judgment.
The Marriage Act provides for publication of banns or the issue of a special licence before a marriage is solemnised. Section 10(2) prescribes the words to be used when an administrative officer or marriage officer solemnises a civil marriage. Its formulary refers to a "bridegroom" and a "bride", and to the parties taking one another as "wife" and "husband". The interpretation and constitutionality of this wording became issues in the couple's application.
Applicants and attempted marriage Bonolo Omphile Selelo, an attorney practising at her law firm, B. O. Selelo Attorneys, and Tsholofelo Seele Kumile, an administrator at the same law firm, began a relationship in October 2023 and became engaged in 2024. They then sought a civil marriage and on 15 April 2025, accompanied by two witnesses, they attended at the Department of Civil and National Registration's marriage office in Gaborone to arrange publication of their banns. Officials referred them to the department's head office, where they subsequently met registration officials. According to the couple's account in their court papers, they were told that their proposed marriage was not permitted and were advised to consider marrying in South Africa. Following further consultation, the department communicated its refusal in a letter dated 8 May 2025, stating that the form of marriage they sought was not supported by the law.
Proceedings Commencement and relief sought Selelo and Kumile filed proceedings against the Acting Director of Civil Registration and the Attorney General on 1 September 2025. The Attorney General was cited as the government's legal representative on behalf of the Director. The couple filed an amended notice of motion and founding affidavit on 7 October following receipt of the record of proceedings from the Attorney General; the Government's answering affidavit was filed on 5 November. The application combined judicial review of the administrative refusal with a constitutional challenge. In the amended motion, the couple asked the court to set aside the decision of 8 May 2025 and direct publication of their banns under section 4 of the Marriage Act arguing that no law prevented publication of their banns. They also sought a declaration that section 10(2) of the Marriage Act did not exclude same-sex couples and an order requiring registration of their marriage after the statutory period for publication of banns. Alternatively, they sought a declaration that section 10(2) of the Marriage Act violated the Constitution and an order striking it down.
Joinder and amicus curiae applications On 6 March 2026, religious and traditional organisations applied to join the proceedings in opposition to the couple's application. Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) subsequently sought to join as a co-applicant, arguing that exclusion from civil marriage violated the rights of same-sex couples. Dr. Onthatile Olerile Moeti, a law academic at the University of Botswana, applied for permission to participate as an amicus curiae. The application proposed presenting evidence, legal arguments and comparative research to assist the court. The Botswana House of Prayer and Transformation, the Dingwetsi Association of Botswana () and the Evangelical Fellowship of Botswana sought admission as respondents. The court heard the participation applications on 14 July and reserved its decision until 4 September. Selelo, Kumile and the Attorney General did not oppose the joinder applications and filed notices to abide with whatever the decision the court made in respect of the joinder applications.
On 4 September, the High Court admitted LEGABIBO as the third applicant alongside Selelo and Kumile. It admitted the Botswana House of Prayer and Transformation, the Dingwetsi Association of Botswana and the Evangelical Fellowship of Botswana as additional respondents opposing the application. Moeti was granted permission to participate as an amicus curiae. The ruling concerned participation in the proceedings and did not determine the constitutional challenge. The main hearing is scheduled for 22 and 23 October 2026.
Legal arguments Applicants In the founding affidavit, Selelo distinguished the publication of banns from the subsequent solemnisation of a marriage. She argued that the provisions governing banns and the relevant application form used gender-neutral language, and that officials therefore lacked a lawful basis for refusing to publish the couple's banns. She also argued that same-sex relationships were not among the impediments to marriage listed in section 13 of the Marriage Act.
The couple asked the court to interpret the Act consistently with constitutional rights and the Interpretation Act'''s rule that statutory references to one sex include the other. On their proposed reading, references to a husband or bridegroom could include a wife or bride, allowing section 10(2) to accommodate a marriage between two people of the same sex. Their constitutional challenge was advanced as an alternative if the court rejected that interpretation.
The constitutional grounds relied on sections 3, 7, 12, 13 and 15 of the Constitution of Botswana, concerning fundamental rights and freedoms, protection from inhuman or degrading treatment, freedom of expression, freedom of assembly and association, and protection from discrimination. The couple argued that exclusion from marriage denied them legal protections concerning inheritance, pensions, medical consent and property, while perpetuating stigma. They characterised marriage as an expression of their relationship and a legally recognised association.
Addressing the exception to the prohibition of discrimination concerning matters of personal law in section 15(4)(c), Selelo argued that the exception had to be interpreted narrowly and consistently with section 3. She contended that allowing the couple to marry would not impair the rights of others and that exclusion served no legitimate public interest. In reply to the government's affidavit, she invoked the constitutional reasoning in Motshidiemang, arguing that its protection against discrimination based on sexual orientation supported equal access to marriage.
Government The government maintained that the Marriage Act applied only to marriages between people of different sexes. It relied on the statutory references to a bridegroom and a bride as evidence of Parliament's intention. In the answering affidavit, Acting Director Ofentse Gojamang argued that the court could not read same-sex couples into section 10(2), and that publication of banns could not be separated from the requirement that the intended marriage be capable of solemnisation under the Act.
The government's constitutional defence relied on section 15(4)(c), which provides a personal law exception to section 15(1)'s prohibition on discriminatory legislation, including for provisions concerning marriage. Gojamang argued that the exclusion was constitutionally permitted and rejected the applicants' contention that the exception should be narrowly construed as a limitation on their rights. The government also denied that the refusal violated the other constitutional provisions invoked by the couple, and argued that recognition of same-sex marriage would not accord with the public interest or society's morals.
The parties also disputed the status of legal advice obtained from the Attorney General before the registration decision. The government asserted that the advice was protected by legal professional privilege. In their replying affidavit, the applicants argued that advice underlying an administrative decision should form part of the record provided for judicial review and challenged its omission from that record.
Participating organisations In its application for joinder as a co-applicant, LEGABIBO argued that denying same-sex couples access to civil marriage while permitting heterosexual couples to marry violated constitutional rights. Its application associated the exclusion with unequal treatment and the denial of legal protections presently available to spouses. The Evangelical Fellowship of Botswana, which represents 75 churches in the country, in motivating its application for joinder as a respondent opposed recognition of same-sex marriage on religious grounds. It argued that its members had a direct interest in the litigation because some of their ministers of religion had been legally authorised to solemnise marriages. The Dingwetsi Association and the Botswana House of Prayer and Transformation in motivating their applications for joinder as respondents argued that the case had implications for customary law, social values and legislation governing family relationships. Their submissions maintained that changes of this kind should instead be considered by Parliament and the Ntlo ya Dikgosi, Botswana's advisory body to Parliament, which comprises dikgosi (traditional chiefs).
Reactions Selelo publicly compared opposition to the couple's marriage with the opposition faced by Seretse Khama and Ruth Williams Khama over their interracial marriage. During the July proceedings, Dingwetsi president Grace Silver defended the association's participation as an effort to protect Setswana culture. Tshepo Kgositau of the Ricki Kgositau Foundation argued that Botswana should protect minority rights and invoked Christianity's concern for marginalised people.
See also Recognition of same-sex unions in Botswana LGBTQ rights in Botswana Recognition of same-sex unions in Africa Minister of Home Affairs v Fourie''
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