Namibia: LGBTQI+ rights: to comply or not to comply is not the question

Over the past five years, the highest courts in Namibia and Botswana have made important decisions in favor of the human rights of minority groups through rulings and court orders.

However, the implementation of these orders related to the rights of LGBTQI+ people in Botswana and Namibia has not been satisfactory so far.

In 2016, the Botswana Court of Appeal ordered the Registrar of Companies to register lesbian, gay and bisexual Botswana (Legabibo) after they had been denied registration on the basis of the criminalization of same-sex sexual conduct.

In 2017, the Botswana High Court ruled that denying a transgender man legal recognition of his gender undermines his dignity and humanity and ordered the Ministry of Home Affairs to change his identity documents from female to male.

In 2021, the Botswana Court of Appeal decriminalized consensual same-sex sexual conduct.

In May 2023, the Supreme Court of Namibia ordered the government to recognize same-sex unions entered into outside Namibia, in countries where same-sex marriages are legal, in terms of the Immigration Control Act.

Although all these cases constitute historical cases to ensure and guarantee the rights of LGBTQI+ people, there is a growing trend towards the non-implementation of such rulings.

SELECTIVE IMPLEMENTATION

Government officials have partially or selectively implemented or completely ignored court decisions.

In the Legabibo case, the Botswana Court of Appeal found it unconstitutional to deny registration on the assumption that LGBTQI+ people are not recognized in the bill of rights and would offend the morality of the nation.

The court found that the LGBTQI+ community, like any other citizen or group in Botswana, has the right to freedom of association, expression and assembly, and ordered Legabibo to be registered. The order was fulfilled quickly.

However, seven years later, in March 2024, an LGBTQI+ group’s efforts to register were met with similar sentiments as before the Legabibo ruling.

Senior public officials resisted the highest court’s decision to register the new group.

Although their reasons are not stated as clearly as Legabibo’s rejection, government officials continue to surreptitiously block the registration of LGBTQI+ organizations.

Similarly, we have observed a selective application technique developing in gender recognition legal cases.

In this case, government officials interpreted this as a one-time order that only applies to applicants and not “all persons.”

INDIVIDUAL EXPERIENCES

According to anecdotal evidence based on the experiences of people who applied for legal recognition of their gender, they are instructed to acquire individualized court orders, which is a

Total misinterpretation of court directions, forcing courts to issue duplicate orders.

This selective interpretation is a covert measure by officials to undermine judicial decisions and transfer the responsibility and burden of implementation to people with limited resources, limiting access to justice.

What is also curious is why the judicial system does not address repeated requests on the same issue.

The attorney general of Botswana acted in contempt of the sentence with the court order of decriminalization.

Instead of repealing articles 164 (a) and (c) of the penal code, which prohibit consensual sexual relations between same-sex couples, the attorney general blatantly ignored the court order and submitted a bill to parliament for debate .

Botswana’s highest court made a carefully considered decision to decriminalize, as indicated by a statement from SALC and many contributors on the issue; There is no need to debate, the court has decided.

NAMIBIA

In the case of Namibia, compliance with the court order means recognizing foreign couples in same-sex marriages with their Namibian partners as spouses, thus granting them immigration status that allows them to live and work in Namibia.

Despite the Ministry of Interior, Immigration and Security’s commitment to compliance, government officials still refuse to respect the Supreme Court ruling, as Danny Digashu’s experience indicates: “On one of my many visits to immigration offices , the official informed me that the court order was only intended for couples directly involved in the court case, without knowing that I was one of those couples.

“I have the impression that immigration officials have adopted a dishonest tactic to deter other same-sex couples, making them believe that the ruling does not protect them.”

One of the most important contributors to non-compliance is the media.

A report on the Supreme Court’s decision in the Digashu/Seiler-Lilles case carried the sensational headline “Supreme Court grants legal status to same-sex marriages,” misinforming the public and fueling negativity.

Misinformation affects not only litigants and community members, but also fuels already hostile public attitudes toward LGBTQI+ people.

Members of parliament and religious communities put pressure on government officials.

Unfortunately, parliament responded with a marriage bill that contradicted the ruling, rather than clarifying what the ruling means and who it affects.

PERSONAL TOLL

Public officials reflect the sentiments of legislators, without regard to democratic principles, the rule of law and justice for all, which are clearly established in the Constitution, further undermining the independence of the judiciary.

These are just a few of the many court orders that government officials have ignored

to the detriment and inconvenience of the minority who went to court seeking redress.

For example, in Digashu’s case, he is granted a visitor visa every time he leaves the country,

meaning you are forced to leave the country when it expires or face the wrath of the law.

The cost of frequent travel and the personal emotional toll on him and his family is

insuperable. Not to mention the constant confrontations with questions, often followed by ridicule, from immigration officials.