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Recognition of same-sex unions in Botswana

From Wikipedia, the free encyclopedia

Part of the LGBT rights series
Marriage

Recognized

Civil unions and
registered partnerships
Minimal recognition
Unclear legal status
See also
Notes
  1. KoN: Performed in the Netherlands proper, including the Caribbean Netherlands. Registered in Aruba, Curaçao and Sint Maarten in such cases, but the rights of marriage are not guaranteed.
  2. NZ: Neither performed nor recognized in Niue, Tokelau, or the Cook Islands.
  3. UK: Neither performed nor recognized in six British Overseas Territories.
  4. US: Neither performed nor recognized in some tribal nations. Recognized but not performed in several other tribal nations and American Samoa.
  5. Israel: Registered foreign marriages confer all marriage rights. Domestic common-law marriages confer most rights of marriage. Domestic civil marriage recognized by some cities.
  6. EU: 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. All EU member states except Romania follow the ruling.
  7. Cambodia: Recognition of a "declaration of family relationship", which may be useful in matters such as housing, but they are not legally binding.
  8. China: Guardianship agreements, conferring some limited legal benefits, including decisions about medical and personal care.
  9. HK: Inheritance, guardianship rights, and residency rights for foreign spouses of legal residents.
  10. India: Courts have recognised guru–shishya, nata pratha or maitri karar–type contractual relationships, but they are not legally binding.
  11. Japan: Some cities and prefectures issue partnership certificates, but they are not legally binding.
  12. Namibia: Marriages conducted abroad between a Namibian national and a foreign spouse recognized for residency rights.
  13. Romania: Hospital visitation rights through a "legal representative" status.
* Not yet in effect
LGBT portal

Botswana does not recognize same-sex marriages or civil unions. The Marriage Act does not recognise same-sex marriage.

Historical recognition of same-sex relationships

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 disappeared as Botswana became more modernized and exposed to Christianity, Western culture and homophobia in the late 19th century and early 20th century.[5][6]

Today, homosexuality is viewed as taboo, and society generally does not accept same-sex relationships. Same-sex sexual relations were prohibited in Botswana until the law was struck down by the High Court in 2019.[7]

Background

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

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,[8] have cemented Botswana as a "[leader] in Southern Africa".[9][10] 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.[11]

Legal situation

The Marriage Act (Tswana: Molao wa Manyalo; Act 18 of 2001, Chapter 29:01) 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".[12] The Constitution of Botswana, unlike neighbouring Zimbabwe's constitution, also does not explicitly forbid marriages between people of the same sex.[13] 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.[14]

See also

References

  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. ^ State-sponsored Homophobia A world survey of laws prohibiting same sex activity between consenting adults Archived 17 October 2012 at the Wayback Machine
  9. ^ Epprecht, Marc (29 July 2019). "Botswana recognizes LGBTQ rights, leading the way in southern Africa". The Conversation.
  10. ^ Fortuin, Bradley (6 April 2023). "LGBTQ rights and inclusion amid Botswana's constitutional review process". Southern Africa Ligitation Centre.
  11. ^ Chukura, Ngozi (31 May 2022). ""Fully embraced"? Bostwana's queer struggles since decriminalisation". African Arguments.
  12. ^ "Marriage Act". Laws of Botswana. Retrieved 2 March 2024.
  13. ^ "Constitution of Botswana" (PDF). Parliament of Botswana. Retrieved 2 March 2024.
  14. ^ Mokwape, Mpho (6 December 2021). "No Same-Sex Marriage Yet". Mmegionline. Archived from the original on 7 December 2021.
This page was last edited on 25 March 2024, at 22:31
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