Opinion: To Comply or Not to Comply is Not the Question

Over the past five years, the highest courts in Namibia and Botswana have made significant decisions in favour of minority groups’ human rights through favourable judgements and court orders. However, the implementation of these orders related to the rights of LGBTQI+ in Botswana and Namibia has so far not been satisfactory.

In 2016, the Botswana Court of Appeal ordered the Registrar of Societies to register the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) after they had been denied registration based on the criminalisation of same-sex sexual conduct.

In 2017, the High Court of Botswana pronounced that denying a transgender man legal gender recognition undermines their dignity and humanity and ordered the Ministry of Home Affairs to change his identity documents from female to male. In 2021, the Court of Appeal in Botswana decriminalised consensual same-sex sexual conduct.

In May 2023, the Supreme Court of Namibia ordered the government to recognise same-sex unions concluded outside Namibia, where same-sex marriages are legal in terms of the Immigration Act. While all these cases constitute landmark cases in securing and guaranteeing the rights of LGBTIQ persons, there is a growing trend of non-implementation when it comes to such judgements.

Disregard of Court Decisions

Government officials have partially or selectively implemented or completely disregarded the court decisions. In the LEGABIBO registration case, the Botswana Court of Appeal found that it is unconstitutional to deny registration under the assumption that LGBTQI+ are not recognised in the Bill of Rights and will offend the morality of the nation.

The court found that LGBTQI+, like any other citizen or group of people in Botswana, have the right to freedom of association, expression and assembly, and issued an order for LEGABIBO to be registered, an order that was fulfilled promptly.

However, seven years later, in March 2024, an LBQ group’s efforts to register are met with sentiments similar to those before the LEGABIBO jurisprudence. Senior public officials resisted the highest court decision to register this new group. Although their reasons are not stated as clearly as LEGABIBO rejection, government officials are still surreptitiously blocking the registration of LGBTQI+ organisations.

Similarly, we have observed the selective application technique unfolding in legal gender recognition cases. In this case, the government officials have interpreted this as a single order that only applies to the applicants and not “all persons” According to anecdotal evidence based on the experiences of individuals who sought legal gender recognition, they are instructed to acquire individualised court orders, a complete misinterpretation of the court’s instructions, burdening the courts to issue duplicate orders.

Undermining the Judiciary

This selective interpretation is a covert move by government officials to undermine judicial decisions and transfer the responsibility and burden of implementation to resource-constrained individuals, limiting access to justice. What is also curious is why the court system does not address repeat applications on the same issue.

With the decriminalisation court order, the Attorney General acted in contempt of the judgement when he, instead of scrapping Sections 164 (a) and (c), blatantly ignored the court order and put a Bill before Parliament for debate. The highest court in Botswana had made a carefully considered decision to decriminalise, as indicated by a statement from SALC and by many contributors to this issue; there is no need to debate; the court has decided.

In Namibia’s case, compliance with the court order means recognising foreign partners in same-sex marriages with their Namibian partners as spouses, thereby issuing them an immigration status that allows them to reside and work in Namibia.

Despite the commitment by the Ministry of Home Affairs to comply, government officials still refuse to respect the Supreme Court ruling, as indicated by Mr Digashu’s experience:

“In one of my many visits to the immigration offices, the officer informed me that the court order was only meant for the couples directly engaged in the court case, unaware that I was one of those couples. I got the impression that the immigration officials have adopted a dishonest tactic to deter other same-sex couples, letting them believe that the judgement does not protect them.”

Media Sensationalism Fuels Hostile Attitudes

One of the most significant contributors to non-compliance is the media. The media reports on the Supreme Court decision on the Digashu/Seiller-lilies matter ran with the sensational headline “Supreme Court gives legal status to same-sex marriages,” Misinforming the public and fueling negativity. Misinformation affects not only the litigants and community members but also feeds the already hostile public attitudes towards LGBTQI+ persons. Members of Parliament and religious communities also put pressure on government officials.

Unfortunately, Parliament responded with a Marriage Bill that contradicted the judgment, instead of clarifying what the ruling means and whom it affects. Public officials reflect legislators’ sentiments, disregarding principles of democracy, the rule of law, and justice for all, which are clearly stated in the constitution, and further undermining the independence of the judiciary.

These are only a few of the many court orders that government officials have disregarded to the disadvantage and inconvenience of the minority who went to court to seek redress.

For example, in the case of Mr Daniel Digashu, he is given a Visitor’s Visa every time he leaves the country, which means he is forced to exit the country at its expiration date or face the wrath of the law. The cost of frequent travel and the personal emotional toll on himself and his family is insurmountable. Let alone constant dealings with questions, often followed by ridicule from immigration officials.

Lack of Consequences

The question, therefore, is, what must happen to government officials who disregard court orders? The Chief Justice in Kenya offers a solution to this conundrum. Recently, the Chief Justice observed that senior government officials are guilty of defying court orders and suggested remedies such as impeachment of individual officers responsible. Botswana and Namibia must take a leaf out of that book.

Of great concern is also that government officials are not transparent about the limitations of the court orders to enable the litigants and beneficiaries to seek clarification from the courts, nor are they open to engaging with civil society and affected communities to improve compliance. Are the court orders vague and, therefore, challenging to implement?

Being transparent about implementation constraints will go a long way in guiding civil society on how they can support the government. Even in their resource-constrained status, CSOs must continue to monitor compliance and return to the courts for enforcement, including publicising non-compliance in the media for public engagement.

In conclusion, the rule of law requires that all court decisions be implemented promptly, thoroughly and effectively. The government has no choice whether to execute or not execute the court orders.

 

The authors – Daniel Digashu and Anna Mmolai-Chalmers – are consultants at the Southern Africa Litigation Center (SALC). SALC promotes and advances human rights and the rule of law in Southern Africa, primarily through strategic litigation and capacity-strengthening support to lawyers and grassroots organisations.