As Botswana prepares for the resumption of a landmark marriage equality case before the High Court on July 14–15, the country finds itself at a critical constitutional crossroads.  

At first glance, the matter may appear to be about whether two women, Bonolo Selelelo and Tsholofelo Kumile, can have their love legally recognized. At its core however, this case is about something far more profound: the dismantling of patriarchy, the decolonization of law, and the integrity of Botswana’s constitutional democracy. 

Beyond marriage: a question of power 

Marriage, as a legal institution, has never been neutral. It has historically functioned as a  mechanism for regulating women’s bodies, sexuality, and social roles within a patriarchal  order. To deny LBQ (lesbian, bisexual, and queer) women access to marriage is not merely to exclude them from a legal benefit, it is to reinforce a hierarchy of relationships, where heterosexual unions are deemed legitimate and all others invisible. This case therefore challenges the very foundations of who gets to love, who gets to belong, and who gets to be protected under the law. 

As feminist scholars have long argued, patriarchy is sustained through institutions that  appear ordinary but are deeply political. The law is one such institution. And it is precisely  here that this case intervenes: by asking whether Botswana’s legal system will continue to uphold exclusion, or evolve to reflect the constitutional promise of equality. 

A constitutional journey: Botswana’s courts and human dignity

This is not the first time Botswana’s courts have been called upon to affirm the dignity of  LGBTQI+ persons. Over the past decade, the judiciary has built a progressive body of  jurisprudence grounded in equality, nondiscrimination, and human dignity. 

In Attorney General v. Rammoge and Others (Court of Appeal Civil Appeal No. CACGB 128-14, 2016), the Court of Appeal upheld the right of LEGABIBO to register as an organization. The court affirmed that: 

“The refusal to register the appellant society was not only unlawful, but a violation of the  respondents’ fundamental rights to freedom of association.”

This was followed by the ND v. Attorney General of Botswana (MAHGB-000449-15,  2017) case, where the High Court recognized the right of a transgender man to change his gender marker. The court held: 

“Gender identity is an integral part of a person’s identity … and any interference with  that identity is a violation of dignity.” 

In Letsweletse Motshidiemang v. Attorney General (MAHGB-000591-16, 2019), the High Court decriminalized same-sex activity, declaring sections of the Penal Code unconstitutional. Justice Leburu powerfully stated: 

“Human dignity is harmed when minority groups are marginalized.” 

This decision was affirmed by the Court of Appeal in Attorney General v. Motshidiemang (CACGB-157-19, 2021), where the court emphasized: 

“The Constitution is a dynamic instrument … it must be interpreted in a manner that gives effect to the values of dignity, liberty, and equality.” 

These cases collectively establish a clear principle: the Constitution of Botswana protects all persons, not just the majority. 

The marriage equality case now asks a logical next question: If LGBTQI+ persons are entitled to dignity, identity, and freedom from criminalization, why are their relationships still denied recognition? 

Decolonizing the law: What is truly ‘UnAfrican’? 

Opponents of marriage equality often argue that homosexuality is “unAfrican.” This claim, while politically powerful, is historically inaccurate. Same-sex relationships and diverse gender identities have existed across African societies long before colonial rule. What is foreign, however, are the laws that criminalize these identities. 

Botswana’s anti-sodomy laws were inherited from British colonial legal systems, not from  indigenous Tswana culture. As scholars of African history have demonstrated, colonial  administrations imposed rigid Victorian moral codes that erased and suppressed existing  sexual diversity. To claim that homosexuality is unAfrican, while defending colonial-era laws, is therefore a contradiction.

A truly decolonial approach to the law requires us to ask: Whose morality are we upholding? And whose history are we erasing? 

Marriage equality, in this sense, is not a Western imposition: it is part of a broader project of reclaiming African dignity, plurality, and humanity. 

Democracy on trial: the question of separation of powers

This case also raises important questions about the health of Botswana’s democracy. 

Following the 2021 Court of Appeal decision affirming the decriminalization of same-sex  relations, Botswana witnessed public demonstrations, including marches led by groups such as the Evangelical Fellowship of Botswana (EFB), opposing the judgment and calling for the retention of discriminatory laws. 

While public participation is a cornerstone of democracy, these events raise deeper concerns about the separation of powers. Courts are constitutionally mandated to interpret the law and protect fundamental rights, even when such decisions are  unpopular. When judicial decisions grounded in constitutional principles are publicly resisted on moral or religious grounds, it risks undermining the authority of the courts  and the rule of law itself. 

Democracy is not simply about majority opinion: it is about the protection of minority rights within a constitutional framework. 

Botswana is not a theocracy 

It is also important to clarify a recurring misconception: Botswana is not a Christian nation. 

Botswana is a secular constitutional democracy and more accurately, a pluralistic society that recognizes and respects diversity of belief, culture, and identity. The Constitution does not elevate one religion above others, nor does it permit religious doctrine to  dictate legal rights. The law must serve all citizens equally, regardless of faith. 

To frame marriage equality as a threat to Christianity is therefore misplaced. The question before the courts is not theological, but constitutional: Does the exclusion of same-sex couples from marriage violate the rights to equality and nondiscrimination?

Love, equality, and the future of justice 

At its heart, this case is about love, but it is also about power, history, and justice. It asks whether Botswana is prepared to move beyond colonial legal frameworks and patriarchal  norms, and to embrace a future grounded in equality, dignity, and inclusion. 

It asks whether the Constitution will continue to be interpreted as a living document, one that evolves with society, or remain constrained by outdated moral assumptions. Ultimately, it asks whether Botswana’s democracy can hold true to its founding promise: that all persons are equal before the law. 

As the High Court prepares to hear this case in July 2026, the nation has an opportunity to affirm not only the rights of two individuals, but the broader principle that love, in all its diversity, deserves recognition, and protection. 

Lorato ke lorato.  

Love is love. 

Justice, if it is to mean anything at all, must make space for it.

Nozizwe is the CEO of LEGABIBO (Lesbians, Gays and Bisexuals of Botswana)

India’s LGBTQ community has found renewed hope in the election of Menaka Guruswamy, a lawyer who has argued before the Supreme Court, as the country’s first openly LGBTQ MP.

Guruswamy was declared elected unopposed to the Rajya Sabha, the upper house of Parliament, on March 9, representing West Bengal. The All India Trinamool Congress, the regional party that governs the state, nominated her.

Guruswamy is a constitutional lawyer who studied at Oxford University, Harvard Law School, and the National Law School of India University. She has argued several significant cases before the Supreme Court and is widely known for her work on constitutional law, civil liberties, and LGBTQ rights. 

Guruswamy was part of the legal team that successfully challenged Section 377 of the Indian Penal Code, a colonial-era law that criminalized consensual same-sex sexual relations, which the Supreme Court struck down in 2018. She has also written and spoken extensively on issues of democracy, rights and institutional accountability.

Ankit Bhupatani, a global diversity, equity and inclusion leader and LGBTQ activist, welcomed Guruswamy’s election. 

“This is significant not because Parliament needed a queer person, but because a queer person needed Parliament,” Bhupatani told the Washington Blade.

India has seen LGBTQ representation in elected office at the state and local levels, though it has remained limited. 

In 1998, Shabnam Mausi was elected to the Madhya Pradesh Legislative Assembly from the Sohagpur constituency, becoming one of the first openly transgender people to hold public office in India. Mausi’s election marked a rare moment of visibility for trans people in the country’s political system, where representation has historically been sparse. Since then, a small number of openly trans candidates have contested and, in some cases, won local and state elections, but no openly LGBTQ person had been elected to Parliament before Guruswamy.

Guruswamy and her partner, Arundhati Katju, who is also a lawyer, were part of the legal team that played a central role in the Section 377 decision.

Representing one of the plaintiffs, the two lawyers helped frame the case around constitutional guarantees of equality, dignity, and privacy. The Navtej Singh Johar v. Union of India ruling marked a watershed moment for LGBTQ rights in India.

“For too long, we have fought our battles only in courtrooms and on streets. Now, there is a seat at the table where laws are written,” said Bhupatani. “Whether that seat produces change depends entirely on how it is used. Representation without substance is decoration. But as a beginning, yes. This matters.”

Guruswamy later represented the plaintiffs in the Supreme Court’s 2023 marriage equality case, Supriyo v. Union of India, which a 5-judge panel heard in the spring of 2023. 

Along with other lawyers representing same-sex couples, she advanced arguments rooted in constitutional guarantees of equality, dignity, and personal liberty. The Supreme Court in a 3-2 decision on Oct. 17, 2023, declined to recognize same-sex marriage — holding that such a change falls within Parliament’s domain — but did acknowledge LGBTQ people face discrimination. The Blade previously reported the ruling underscored the court’s view that it could interpret the law, but could not create a new legal framework for marriage rights.

Bhupatani said Guruswamy’s election should not be seen as an immediate shift toward legislative action on LGBTQ rights, cautioning that such expectations may not align with political realities. He said her presence in Parliament could help sustain the issue in a way it has not been before, even as broader legal change is likely to take time.

“What she can do is keep the question alive inside Parliament in a way that it hasn’t been before,” Bhupatani said. “Legislative change in India on social questions usually takes longer than advocates want and shorter than skeptics predict. The 377 decriminalization seemed impossible until it wasn’t. Partnership rights will follow the same pattern eventually.”

Bhupatani added that while Guruswamy’s election may influence the pace of change, it does not, on its own, constitute a broader political movement.

“One person in Parliament, however extraordinary, is not a movement. She is an opening,” he said. “The 2023 ruling created a responsibility. Guruswamy’s election creates an opportunity to fulfill it from inside. Whether opportunity becomes outcome is entirely a question of human will.”

Guruswamy has served as a visiting faculty member at leading American institutions that include Yale Law School, Columbia Law School, and New York University School of Law. She has also worked with international organizations, advising the U.N. Development Fund for Women in New York and the U.N. Children’s Fund in both New York and South Sudan.

According to her professional profile, Guruswamy has been involved in a range of significant cases before the Indian Supreme Court that include matters related to bureaucratic reform and accountability. 

One case is connected to the AgustaWestland helicopter deal, an investigation into alleged bribery in a multimillion-dollar defense procurement contract; litigation arising from the Salwa Judum case, in which the court examined the state-backed use of civilian militias in counterinsurgency operations in central India; and cases involving the implementation of the Right to Education Act, a law guaranteeing free and compulsory education for children between the ages of six and 14.

More recently, Guruswamy represented the All India Trinamool Congress in legal proceedings challenging searches conducted by India’s Enforcement Directorate, a federal agency responsible for investigating financial crimes, including money laundering and violations of foreign exchange laws. The searches were carried out at the offices of the Indian Political Action Committee, or I-PAC, a political consulting firm that provides data-driven campaign strategy and election management services to political parties. The case raised questions about the scope of investigative powers and the use of federal agencies in politically sensitive matters.

Guruswamy’s engagement with LGBTQ rights has extended beyond courtroom advocacy into public constitutional discourse. 

On July 11, 2018, during hearings in the Section 377 case, she argued the criminalization law could not be justified on the basis of “social morality,” describing it as subjective and incompatible with constitutional guarantees, and framing the case as one fundamentally about “our humanity.” The Thomas Jefferson Foundation Medal in Law at the University of Virginia in February 2023 recognized Guruswamy and Katju for their work on LGBTQ rights.

Guruswamy has not responded to the Blade’s multiple requests for comment about her election.

Poland’s Supreme Administrative Court on March 20 ruled the country must recognize same-sex marriages legally performed in other European Union states.

The EU Court of Justice in Luxembourg last November ruled in favor of a same-sex couple who challenged Poland’s refusal to recognize their German marriage.

The couple, who lives in Poland, brought their case to Polish courts in 2019. The Supreme Administrative Court referred it to the EU Court of Justice.

“Today’s ruling by the Supreme Administrative Court clearly demonstrates that Poland, as a member state of the European Union, must comply with European Union law,” said Przemek Walas, advocacy manager for the Campaign Against Homophobia, a Polish LGBTQ advocacy group, in a statement. “The Supreme Administrative Court rightly upheld the interpretation of the Court in Luxembourg and indicated that the only way to implement this ruling is to allow the transcription of a foreign marriage certificate.”

“This ruling is a significant step towards marital equality, but certainly not sufficient,” added Walas.

Ireland, Portugal, Spain, France, Luxembourg, Belgium, the Netherlands, Germany, Denmark, Austria, Slovenia, Malta, Greece, Sweden, Finland, and Estonia are the EU countries that have extended full marriage rights to same-sex couples. Poland — along with Romania, Bulgaria, and Slovakia — are the four EU countries with no legal recognition of same-sex couples.