Botswana was in a whole frenzy as religious and traditional fundamentalists kept mixing religion and constitutional law as if it were harmless. It is not. One is a private matter of belief between you and God, while the other is the framework that protects and governs us all. When these two systems get fused, the result is rarely justice. It results in discrimination. 

The ongoing case brought by Bonolo Selelo and Tsholofelo Kumile challenging provisions of the Botswana Marriage Act has reignited a familiar debate in Botswana. Some commentators insist that marriage equality violates religious values and therefore should not be recognized by law. It is a predictable argument. It is also fundamentally incompatible with constitutional governance.

Botswana is not a Christian state. It is a constitutional democracy governed by the Constitution of Botswana. That distinction matters. In a constitutional democracy, laws are interpreted in accordance with constitutional principles such as equality, dignity, protection, inclusion and the rule of law, rather than the doctrinal beliefs of any particular religion.

Religion has no place in constitutional law and democracy

The central problem with religious arguments in constitutional disputes is simple in that they divide, they other, they contest equality and they are personal. Constitutional law by contrast, must apply equally to everyone.

Botswana’s Constitution guarantees fundamental rights and freedoms under Sections 3 and 15, including protection from discrimination and the right to equal protection of the law. These provisions are not conditional on religious approval. They exist precisely to protect minorities from the preferences or prejudices of the majority.

Legal experts, such as Anneke Meerkotter, in her policy brief in Defense of Constitutional Morality, point out that constitutional rights function as a safeguard against majoritarian morality. If rights depended on whether the majority approved of a minority’s identity or relationships, they would not be rights at all. They would merely be privileges.

This principle has already been affirmed in Botswana’s jurisprudence. In the landmark decision of Letsweletse Motshidiemang v Attorney General, the High Court held that criminalizing consensual same-sex relations violated constitutional protections of liberty, dignity, privacy, and equality. This judgment noted that constitutional interpretation must evolve with society and must be guided by human dignity and equality. The court emphasized that the Constitution protects all citizens, including those whose identities, expressions or relationships may be unpopular. That ruling was later upheld by the Court of Appeal of Botswana in 2021, reinforcing the principle that constitutional rights cannot be restricted on grounds of moral disapproval alone. These decisions were not theological pronouncements. They were legal determinations grounded in constitutional principles.

The danger of religious majoritarianism

When religion is used to justify legal restrictions, the result is what constitutional scholars call “majoritarian moralism.” It allows the dominant religious interpretation in society to dictate the rights of everyone else. That approach is fundamentally incompatible with constitutional democracy. Botswana is religiously diverse. While Christianity is the majority faith, there are also Muslims, Hindus, traditional spiritual communities, Sikh and people who practice no religion at all. If the law were to follow the doctrines of one religious group, which interpretation would it adopt? Christianity alone contains dozens of denominations with different views on love, equality, marriage, sexuality, and gender. The moment the state begins to legislate on the basis of religious doctrine, it implicitly privileges one belief system over others. That undermines both religious freedom and constitutional equality. Ironically, keeping religion separate from constitutional law is what protects religious freedom in the first place.

Judicial independence is the cornerstone of Botswana’s governance system

The current case involving Bonolo Selelo and Tsholofelo Kumile is before the judiciary, where it belongs. Courts exist to interpret the Constitution and determine whether legislation complies with constitutional rights. Political and religious lobbying, as well as public outrage, must not influence that process.

Judicial independence is the cornerstone of Botswana’s governance system. According to the International Commission of Jurists, judicial independence ensures that courts can make decisions based on law and evidence rather than political or social pressure.

When governments, political, religious, or traditional actors attempt to interfere in constitutional litigation, they weaken the rule of law. Botswana has historically prided itself on having one of the most stable constitutional systems in Africa. The judiciary has played a critical role in safeguarding rights and maintaining legal certainty. The decriminalization case demonstrated this. Despite strong public debate and political sensitivity, the courts assessed the law according to constitutional principles rather than moral panic. The same standard must apply in the current marriage equality case.

This article was first published in the Botswana Gazette, Midweek Sun, and Botswana Guardian newspapers and has been edited for the Washington Blade. 

Bradley Fortuin is a consultant at the Southern Africa Litigation Center and a social justice activist.

“When the sun rose on 1 Nov., 2025, Pride morning in Palapye, the open space where the march was scheduled to begin was empty. I stood there trying to look calm, but inside, my chest felt tight. I was worried that no one would come. It was the first-ever Pride in Palapye, a semi-urban village where cultural norms, religious beliefs, and tradition are deeply woven into everyday life.

I kept asking myself if we were being naive. Maybe people weren’t ready. Perhaps fear was going to win. For the first 30 minutes, it was me, a couple of religious leaders and a handful of parents. That was it. The silence was loud, and every second felt like it stretched into hours. I expected to see the queer community showing up in numbers, draped in color and excitement. Instead, only the wind was moving.

But slowly, gently, just like courage often arrives, people started to show up with a rainbow flag appearing from behind a tree and a hesitant wave from someone standing at a distance.

That’s when I understood that people weren’t late, just that they were afraid. And their fear made sense. Showing up openly in a small community like Palapye is a radical act. It disrupts silence. It challenges norms. It forces visibility. Visibility is powerful, but it is never easy. We marched with courage, pulling from the deepest parts of ourselves. We marched with laughter that cracked through the tension. We marched not because it was easy, but because it was necessary,” narrates activist Seipone Boitshwarelo from AGANG Community Network, which focuses on families and friends of LGBTIQ+ people in Botswana. She is also a BW PRIDE Awards nominee for the Healing and Justice Award, a category which acknowledges contributions to wellness, mental health, and healing for the LGBTIQ+ community across Botswana.

Queer Pride is Botswana Pride!

Pride is both a celebration and a political statement. It came about as a response to systemic oppression, particularly the criminalization and marginalization of LGBTIQ+ people globally, including in Botswana at some point. It is part of the recognition, equality, and assertion of human rights. It also reminds us that liberation and equality are not automatically universal, and continued activism is necessary. A reminder of the famous saying by Fannie Lou Hamer, “Nobody is free until everybody’s free.”

The 2023 Constitutional Review process made one thing evident, which is that Botswana still struggles to acknowledge the existence of LGBTIQ+ people as full citizens. Instead of creating a democratic space for every voice, the process sidelined and erased an entire community. In Bradley Fortuin’s analysis of the Constitutional review and its final report, he highlighted how this erasure directly contradicts past court decisions that explicitly affirmed the right of LGBTIQ+ people to participate fully and openly in civic life. When the state chooses to ignore court orders and ignore communities, it becomes clear that visibility must be reclaimed through alternative means. This is why AGANG Community Network embarked on Palapye Pride. It is a radical insistence on belonging, rooted in community and strengthened through intersectionality with families, friends, and allies who refuse to let our stories be erased.

Motho ke motho ka batho!

One of the most strategic decisions made by the AGANG Community Network was to engage parents, religious leaders, and local community members, recognizing their value in inclusion and support. Thus, their presence in the march was not symbolic, but it was intentional.

Funding for human rights and LGBTIQ+ advocacy has been negatively impacted since January 2025, and current funding is highly competitive, uneven and scarce, especially for grassroots organizations in Botswana. The Palapye Pride event was not funded, but community members still showed up and donated water, a sound system, and someone even printed materials. This event happened because individuals believed in its value and essence. It was a reminder that activism is not always measured in budgets but in willingness and that “motho ke motho ka batho!” (“A person is a person because of other people!”).

Freedom of association for all

In March 2016, in the the Attorney General of Botswana v. Rammoge and 19 Others case, also known as the LEGABIBO registration case, the Botswana Court of Appeal stated that “members of the gay, lesbian, and transgender community, although no doubt a small minority, and unacceptable to some on religious or other grounds, form part of the rich diversity of any nation and are fully entitled in Botswana, as in any other progressive state, to the constitutional protection of their dignity.” Freedom of association, assembly, and expression is a foundation for civic and democratic participation, as it allows all citizens to organize around shared interests, raise their collective voice, and influence societal and cultural change, as well as legislative reform.

The Botswana courts, shortly after in 2021, declared that criminalizing same-sex sexual relations is unconstitutional because they violated rights to privacy, liberty, dignity, equality, and nondiscrimination. Despite these legal wins, social stigma, cultural, and religious opposition continue to affect the daily lived experience of LGBTIQ+ people in Botswana.

The continuation of a declaration

AGANG Community Network is committed to continuing this work and creating safe and supportive spaces for LGBTIQ+ people, their families, friend, and allies. Pride is not just a day of fun. It is a movement, a declaration of queer existence and recognition of allyship. It is healing and reconciliation while amplifying queer joy.

Seipone Boitshwarelo is a feminist, activist, social justice healer, and founder of AGANG Community Network. Bradley Fortuin is a social justice activist and a consultant at the Southern Africa Litigation Center.