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Recognition of same-sex unions in Botswana

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Marriage

Recognized

Civil unions or registered partnerships but not marriage
Minimal recognition
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Notes
  1. ^ a b Performed in the Netherlands proper (including the Caribbean Netherlands), as well as in Aruba and Curaçao. May be registered in Sint Maarten in such cases, but the rights of marriage are not guaranteed.
  2. ^ Neither performed nor recognized in Niue, Tokelau, or the Cook Islands.
  3. ^ Neither performed nor recognized in six British Overseas Territories.
  4. ^ a b Neither performed nor recognized in some tribal nations. Recognized but not performed in several other tribal nations and American Samoa.
  5. ^ Registered foreign marriages confer all marriage rights. Domestic common-law marriages confer most rights of marriage. Domestic civil marriage recognized by some cities.
  6. ^ a b c d e The Coman v. Romania ruling of the European Court of Justice obliges the state to provide residency rights for the foreign spouses of EU citizens. Some member states, including Romania, do not follow the ruling.
  7. ^ A "declaration of family relationship" is available in several of Cambodia's communes which may be useful in matters such as housing, but is not legally binding.
  8. ^ Guardianship agreements, conferring some limited legal benefits, including decisions about medical and personal care.
  9. ^ Inheritance, guardianship rights, and residency rights for foreign spouses of legal residents.
  10. ^ Courts have recognised guru–shishya, nata pratha or maitri karar–type contractual relationships, but they are not legally binding.
  11. ^ Some cities and prefectures issue partnership certificates, but they are not legally binding.
  12. ^ Marriages conducted abroad between a Namibian national and a foreign spouse recognized for residency rights.
  13. ^ Hospital visitation rights through a "legal representative" status.
  1. ^ a b Not yet in effect.
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Botswana does not recognize same-sex marriages or civil unions. The Marriage Act, 2001 does not provide for the recognition of same-sex unions.

Historical recognition of same-sex relationships

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While the Tswana historically practiced polygamy,[1] there are no records of same-sex marriages as understood from a Western perspective being performed in Tswana culture. However, there is evidence for identities and behaviours that may be placed on the LGBT spectrum.[2] Contemporary oral evidence suggests that same-sex relationships were "common" and "prevelant" among Tswana miners in South Africa in the early 20th century. It was during this time through the mining compounds and the influence of South African languages that the contemporary term matanyola, meaning "anal sex", entered the Tswana language.[3] These relationships differed strongly from the Western understanding of same-sex marriages, as men who entered these "mine marriages" continued to marry women and "conform, or appear to conform, to gender expectations", and would not consider themselves as homosexual or bisexual, or "unfaithful to [their] marriage vows.[4] This practice gradually disappeared as Botswana became more modernized and exposed to Christianity, Western culture and homophobia in the 20th century.[5][6] Anal intercourse between men became illegal under colonial law during this time. The law was struck down by the High Court in 2019. Nevertheless, homosexuality is viewed as taboo, and society generally does not accept same-sex relationships.[7]

Among the San peoples, marriage (ǃXóõ: ʼǀnàɲa;[8] Tshwa: se tcu) is generally between a man in his twenties and a girl in her teens, though polygamy is common.[9] Evidence suggests that same-sex sexual activity was previously "common and relatively accepted" by the San peoples.[10]

[edit]
Same-sex sexual activity legal
  Same-sex marriage
  Limited recognition (foreign residency rights)
  No recognition of same-sex couples
Same-sex sexual activity illegal
  Prison but not enforced
  Prison
  Death penalty on books but not enforced

Background

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Same-sex sexual relations were previously outlawed in Botswana under a British colonial-era law. This law was struck down in 2019 by the High Court, a ruling later upheld by an appellate court in 2021. This ruling, along with reforms to the employment law forbidding hiring discrimination on the basis of sexual orientation in 2010 and the registration of Botswana's largest LGBT advocacy organisation, LEGABIBO (Lesbians, Gays & Bisexuals of Botswana), in 2016,[11] have cemented Botswana as a "[leader] in Southern Africa".[12][13] Nevertheless, discrimination and abuse against LGBT people remain a "daily reality for many", and laws do not permit or recognise same-sex marriages or civil unions.[14]

Restrictions

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The Marriage Act, 2001 (Tswana: Molao wa Manyalo, 2001;[15] Act 18 of 2001, Chapter 29:01)[a] does not expressly forbid same-sex marriages and does not contain a definition of marriage. However, it generally refers to married spouses as "husband" and "wife".[16] The Constitution of Botswana, unlike neighbouring Zimbabwe's constitution, also does not explicitly forbid marriages between people of the same sex.[17] Civil partnerships (Tswana: dikgolagano tsa selegae) are likewise not recognised in Botswana. This means that cohabiting same-sex couples do not enjoy the same rights as married couples including with regard to inheritance, tax benefits, adoption and alimony, among others.

In 2021, a spokesperson for LEGABIBO said the issue of same-sex marriage was "likely to arise in [the] future", noting that the 2019 High Court judgement in Letsweletse Motshidiemang v The Attorney-General "might be relevant then" and hoping that "future possibilities may also include a change of law and acceptance of society towards gay marriages". "The offensive provisions of the Penal Code have long been struck down by the High Court and so same-sex conduct has not been criminal since then. This has opened new avenues for conversations to be heard regarding gay rights in total.", they added.[18]

Religious performance

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The Catholic Church, which has two dioceses in Botswana, one in Gaborone and the other in Francistown, opposes same-sex marriage and does not allow its priests to officiate at such marriages. In December 2023, the Holy See published Fiducia supplicans, a declaration allowing Catholic priests to bless couples who are not considered to be married according to church teaching, including the blessing of same-sex couples.[19] The Southern African Catholic Bishops' Conference, representing bishops in Botswana, South Africa and Eswatini, released a statement saying that "the document offers suggestions for when and how the blessings might be given. The Southern African Catholic Bishops Conference will guide further on how such a blessing may be requested and granted to avoid the confusion the document warns against. In the meantime, the suggestions offered by the declaration may be taken as a guide with prudence."[20][21]

In 2015, the General Synod of the Dutch Reformed Church voted by a 64% majority to recognise same-sex marriages, bless the relationships of same-sex couples and allow gay ministers and clergy (who are not required to be celibate). The decision applies to 9 of the 10 synods; with the Namibia Synod being excluded, but it does apply to the Northern Cape and Northern synods, which include parts of Botswana.[22] The decision caused backlash and objections, resulting in it being reversed a year later. A dozen church members subsequently took the denomination to court to restore the 2015 decision. In 2019, the North Gauteng High Court reversed the decision, ruling that while religious organizations have the religious freedom to define marriage the 2016 decision was not made in accordance with the church's own proper process.[23][24] Individual pastors are free to choose whether to bless same-sex marriages; a freedom of conscience clause allows pastors with objections to opt out of performing same-sex weddings.

In 2015, the synod of the Evangelical Lutheran Church in Southern Africa discussed same-sex unions but concluded that "a marriage is understood as a union only between a man and a woman. Furthermore the valid and unchanged position of our Church is that the blessing of same sex unions is rejected."[25] In 2020, the Methodist Church of Southern Africa voted to allow members, including ordained clergy, to enter into same-sex unions, while retaining the denomination's teaching that marriage is a union "between a man and a woman".[26][27]

See also

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Notes

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  1. ^ Kalanga: Tjisungo tjeNlayo weNdobolo

References

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  1. ^ Nkomazana, Fidelis (2006). "Polygamy and Women within the Cultural Context in Botswana". Sabinet African Journals: 265–277.
  2. ^ Spurlin, William J. (2006). Imperialism Within the Margins: Queer Representation and the Politics of Culture in Southern Africa. Palgrave Macmillan. ISBN 9781403983664.
  3. ^ Motswapong, Elizabeth; Gaie, Joseph (December 2022). "Setswana Cultural Attitudes Towards Homosexuality". Journal of East-West Thought.
  4. ^ Moodie, T. Dunbar; Ndatshe, Vivienne; Sibuyi, British. "Migrancy and Male Sexuality on the South African Gold Mines". Journal of Southern African Studies. 14 (2): 228–256.
  5. ^ Okwenna, Chrysogonus (2021). "Homosexuality in Traditional Africa". Obademi Awolowo University Press.
  6. ^ McAllister, John (2013). "Tswanarising global gayness: the 'unAfrican' argument, Western gay media imagery, local responses and gay culture in Botswana". Culture, Health & Sexuality. 15: 88–101. doi:10.1080/13691058.2012.742929.
  7. ^ "Botswana appeals court upholds ruling that decriminalised gay sex | Reuters". Reuters. 29 November 2021.
  8. ^ Traill, Anthony (1994). A !Xóõ Dictionary (PDF). Cologne: Rüdiger Köppe Verlag.
  9. ^ "Bushmen Kalahari Hunter-Gatherers and Their Descendants". Cambridge University Press: 73–85. 2019. doi:10.1017/9781108289603.005.
  10. ^ King, Abigail Edla (2022). The Decolonization of Homosexuality in Zimbabwe: Unpacking the Colonial Roots of State-Sanctioned Homophobia (PDF) (Thesis). Whitman College.
  11. ^ State-sponsored Homophobia A world survey of laws prohibiting same sex activity between consenting adults Archived 17 October 2012 at the Wayback Machine
  12. ^ Epprecht, Marc (29 July 2019). "Botswana recognizes LGBTQ rights, leading the way in southern Africa". The Conversation.
  13. ^ Fortuin, Bradley (6 April 2023). "LGBTQ rights and inclusion amid Botswana's constitutional review process". Southern Africa Ligitation Centre.
  14. ^ Chukura, Ngozi (31 May 2022). ""Fully embraced"? Bostwana's queer struggles since decriminalisation". African Arguments.
  15. ^ "Re A Nyalana Tharabololo Ya Dikgothlhang" (in Tswana). 10 December 2023.
  16. ^ "Marriage Act". Laws of Botswana. Retrieved 2 March 2024.
  17. ^ "Constitution of Botswana" (PDF). Parliament of Botswana. Retrieved 2 March 2024.
  18. ^ Mokwape, Mpho (6 December 2021). "No Same-Sex Marriage Yet". Mmegionline. Archived from the original on 7 December 2021.
  19. ^ Flynn, JD (2023-12-22). "Is the 'false narrative' narrative a false narrative?". The Pillar. Archived from the original on 23 December 2023. Retrieved 2023-12-23.
  20. ^ Coppen, Luke (19 December 2023). "'Fiducia supplicans': Who's saying what?". The Pillar.
  21. ^ "In Nigeria and Much of Africa, Catholic Same-Sex Couples See No Blessings Soon". U.S. News. 29 December 2023.
  22. ^ "Dutch Reformed Church to recognise gay marriage". enca. 10 October 2015. Archived from the original on 11 April 2019. Retrieved 11 April 2019.
  23. ^ "Dutch Reformed Church's Decision Not To Recognise Gay Marriages Set Aside". Eyewitness News. 8 March 2019. Archived from the original on 11 April 2019. Retrieved 11 April 2019.
  24. ^ "Dutch Reformed Church loses court battle over same-sex unions". enca. 8 March 2019. Archived from the original on 11 April 2019. Retrieved 11 April 2019.
  25. ^ "Homosexuality in South Africa". KZNCC. Retrieved 2016-08-01.
  26. ^ "SA Methodist Church won't 'prevent' members entering into same-sex unions". MambaOnline. 2020-10-08. Retrieved 2021-07-16.
  27. ^ "Methodist Church of SA 'clarifies' position on gay marriage". gatewaynews.co.za. 2020-10-09. Retrieved 2021-07-16.
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