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Stuck in limbo: Ukrainian government leaving LGBTQ community behind

Country saw years of steady progress before war began

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Viktor P., an openly gay soldier who has served in the Ukrainian army since the beginning of the Russian invasion, still doesn't have equal rights. (Photo by Alim Yakubov)

BY BOGDAN GLOBA | “It’s not the right time.” 

This is the most frequent response received when advocating for the LGBTQI+ community, but the truth is it is never a suitable time for changes or progress, or even for a discussion about human rights for minorities such as LGBTQI+ people. Since the Soviet Union collapsed in 1991 and the Ukrainian Republic regained independence, a lot of progress was made. For example, Ukraine was the first country out of the post-USSR ones that decriminalized punishment for homosexuality (the Soviet Union criminalized homosexuality with seven years of imprisonment or labor camp detention.) 

In addition, following the Revolution of Dignity, when the Ukraine’s Parliament passed progressive anti-discrimination bills, later they passed the amendment to the labor code that protects from discrimination in the workplace based on sexual orientation and gender identity (SOGI). An important note: The new amendment to the labor code is still the most advanced in Europe, as many countries have adopted legislation protecting discrimination based on sexual orientation without including gender identity. Even the judicial branch made some contributions. Ukraine’s constitution in Article 24 bans discrimination in general; at the same time, it doesn’t have SOGI in the list, but instead has an open list. In May 2014, after two decades, the Supreme Specialized Court of Ukraine wound down legislative debates and published a constitutional review that interpreted the constitution as banning any form of discrimination, including based on SOGI. 

Unfortunately, since 2016, Ukraine’s Parliament has stopped making any legislative progress towards equality for LGBTQI+ people, and all changes have moved to the government executive level. But, even though Ukraine has changed a lot culturally and politically, among the biggest and most crucial puzzles remains unsolved ā€” same-sex marriages or, a bare minimum for the gay community, civil partnership.

Mission impossible (or not) 

The biggest roadblock to same-sex marriage in Ukraine is the constitution. 

Back in 1996, when the first version of the constitution was written, Ukrainian MPs limited the institution of marriage only to men and women, preventing any marriage debates for generations. The mission to change the constitution means the LGBTQI+ movement needs to elect a supermajority in the Verkhovna Rada (300 MPs out of 450) three times, the Constitutional Court needs to approve changes, and the president needs to sign the bill. 

Other examples of stalled progress make the situation look even more bleak.  

Bill 5488 was introduced in May 2021 as part of a long-term affiliation process with the European Union, and part of an Action plan for National Human Rights Strategy and many U.N. resolutions, including recommendations from the U.N. Human Rights Council. This bill would change the Criminal Code to clarify language in Article 161 to add hate crimes protections for LGBTQI+ persons and other marginalized groups.

Unfortunately, the bill was dead on arrival and never voted on in the Parliament, even though it would provide protection from hate crimes not only based on sexual orientation and gender identity, but also based on race, religion, color, language, gender and disability and many more. Broadening protections against hate crimes has broad support overall. Following threats on KyivPrideā€™s march in 2016, even the Orthodox Church of Ukraine made a statement declaring the physical attack unacceptable.                               

Until now, the Ukrainian Parliament held down the ā€œlast fortā€ of traditional family values and didn’t move forward with legislation that included SOGI. Meanwhile, LGBTQI+ Ukrainians continue to lose trust in their governmentā€™s ability or desire to protect them. Only this year, the Human Rights Ombudsman reported 17 cases of hate crimes based on SOGI and only one verdict in the court. Human rights organizations may report hundreds more hate crime cases every year (Ukraine human rights organization Nash Mir Center reported 186 documented hate crimes based on SOGI in 2020), but still, without adopting Bill 5488 or similar legislation, there wonā€™t be an effective system preventing these hate crimes and providing justice for minorities and marginalized groups.

Another existential challenge for the LGBTQI+ community will be adopting a civil partnership bill (as same-sex marriage is realistically not possible in the coming decades). ā€œPreserving the institution of marriageā€ only for straight families, but letting same-sex couples have civil recognition, could let Ukraine join the ranks of other democratic and progressive countries, while appeasing some of the conservative sectorā€™s demands. In most European countries, a civil partnership law was the middle step before same-sex marriages were fully recognized. That institution is long overdue and most needed in Ukraine right now, while thousands of LGBTQI+ are serving in the army with a civilian partner back at home. For straight couples, if something happens with a military partner (wounded or killed), a civilian partner will obtain a variety of government benefits, from cash support to housing. In the case of same-sex couples, they are invisible to the government and have no help or recognition. A civilian person has no right to even bury their partner’s body. 

The Ukrainian government demonstrates insufficient desire to fix LGBTQI+ inequality 

LGBTQI+ Ukrainians are equal enough to serve your country but not equal enough to get the same benefits of straight couples, or to receive adequate protections against hate crimes. The Union of the LGBT Military in Ukraine (a non-government organization) already includes a few hundred openly LGBTQI+ members and a thousand queer military who follow their activities. While they actively fight to protect the republic, they sincerely hope politicians and government have their back. And as many politicians repeat kumbaya about all Ukrainian soldiers being heroes, it does look like they believe LGBTQI+ heroes donā€™t need the same benefits or support as their colleague’s heterosexual ones.

Left behind 

Historically, the most significant and quickest progress for the LGBTQI+ community in Ukraine has happened (2014-2016) in combination with a few factors: The process of joining a visa-free regime with the Schengen zone and integration into the European Union, the cultural revolution when Ukrainian start to watching more Netflix and Western media than Russian channel, and U.S. government investment of great resources to promoting democratic values, including many cultural and exchange programs which help to bolster civil society and the LGBTQI+ human rights movement in Ukraine.

Unfortunately, with the changing power in the White House in 2016, the U.S. government’s priority shifted dramatically, and the Ukrainian LGBTQI+ community was left with markedly less support in the fight for their civil rights with the Ukrainian government, at the same time fighting back against Russian anti-LGBTQ propaganda, the Russian orthodox churchā€™s lobby, and rising right-wing organizations. To add insult to injury, a few representatives from the U.S. Congress came down to Kyiv toĀ participate in a prayer breakfast and lobby for traditional family values, including banning ā€œgay propaganda.ā€ In fact, a group of U.S. congressmen who came to Ukraine’s parliament to lobby for a ban on ā€œLGBTQI+ propagandaā€ was led by U.S. Rep. Juan Vargas (D-Calif.). The same Vargas, who is a member of the Congressional Equality Caucus, has a 100 percent score LGBTQI+ friendlyĀ rating by the organization Human Rights CampaignĀ and is a member of the Democratic party (which by many press releases in favor of protection of the LGBTQI+ community abroad) who represents the greatest state of California. Until now, it was only a delegation representing the U.S. Congress and includingĀ member of Congressional Equality Caucus, which made a trip to Ukraine to talk about LGBTQI+ issues, but just sadly, they talk about the need to criminalize the queer community, not share experiences of how the U.S. navigated many discussions and made gay marriage possible in the U.S.Ā Ā Ā Ā Ā Ā 

At the same time, the European Union is losing the opportunities to stand for the human rights for LGBTQI+ in Ukraine even though the European Commission and other institutions have a lot of tools in the box to be more actively advocating for equality. Unfortunately, integration into the EU does not require recognition of same-sex marriages, as the EU doesn’t regulate marriage standards for members, and after Ukraine passed anti-discrimination legislation and banned the bare minimum of protecting the LGBTQI+ community from discrimination in the workplace, European bureaucrats checked all boxes and lost political interest in any advocacy for the queer community. 

The greatest example was a few weeks window in 2022 when the EU was considering Ukrainian application to become a candidate for a member of the European Union, and the Eurocommision passed to the Ukrainian government must to do list which included the ratification Istanbul Convention but failed to mention hate crime bill there, what was already in Parliament and ready to vote, even more ā€” less sensitive and controversial then Istanbul Convention (religion organization was massively oppose ratification on affair ā€œgender ideologyā€ and actively pushing back in parliaments many years.) 

The last miles of the equality marathon

Ukraine did make enormous progress toward equality for the LGBTQI+ community in the past. More than that; the newish Ukrainian society is much more tolerant, welcoming and friendly. In 2015, KyivPride had a few hundred activists ā€” more than 10,000 people participated in the last one. Surprisingly, most of them were straight people. Ukraine has the biggest movement of LGBTQI+ soldiers in Europe, the larger parents of queer children movement and many more. The picture becomes even brighter if you look at the map and realize all regional countries are going backward on LGBTQI+ issues. Belarus and Russia criminalized homosexuality back in their wish to relive the Soviet Union. Still, even Poland has a free LGBTQI+ zone movement where some regional counties declare themself free from the LGBTQI+ community. On that background, Ukraine looks like the most promising and leading country in the region. Only the Ukrainian government took a nap on the last miles of a marathon.  

How can we shake the Ukrainian government and help them stop lingering on the most essential legislation for the LGBTQI+ community, and end the inequality battle in Ukraine? We can start actively using our diplomacy again. For example, Congress can send a delegation to exchange experiences on how they pass the Marriage Equality Act. The White House and State Department can be more proactive in working groups for the implementation of the U.S.-Ukraine Charter on Strategic Partnership, which includes the Ukraine government’s obligation to pass the hate crime bill, The Department of Justice can organize education program for its Ukrainian counterpart and help them to learn from the U.S. experience on preventing hate crimes. And as we are a country with the largest number of LGBTQI+ envoys in the government per square foot, can we use them at least once for the greatest good?

First Ukrainian column in Capital Pride, which included Ukrainian diplomats who walked with a Ukrainian queer group, for the first time ever in D.C. in June 2022. (Photo by Harmilee Cousin III)

LGBTQI+ as national security for the US       

The important nuance that many experts miss is the LGBTQI+ issue in Ukraine and Eastern Europe (and even broader) is a more complicated issue than we think. One of the self-declared reasons Russia justifies its war and invasion of Ukraine is ā€œtraditional family valuesā€ and their preventing Slavic people from biting the forbidden fruit of GayEurope. When the Russian army took over Mariupol, the biggest TV story on the Russian government channels was a video of how they found the ā€œUS strategic center of gays and lesbians in Mariupol.ā€ The fact is that was an office of the local non-government organization that works with USAID on humanitarian projects and happens to have some posters from KyivPride. But even this Russian crusade against liberal values in Europe is not so damaging as their professional disinformation, work, and influences on American society with a false narrative. Right at this moment, thousands of Russians somewhere in a troll farm in the Crimea are making sure for the millions of U.S. citizens in the coming election, the most important issue will be what restroom to choose instead of social security reform. 

An LGBTQI+ rights protest in front of the Stonewall Inn and the queer Ukrainian community in New York in March 2022. (Photo by Bogdan Globa)

Nina Jankowich, an expert on government strategic communication, in her book How to Lose the Information War gave a few examples of Russian misinformation campaigns that started in Ukraine but had real consequences on the US presidential election in 2020. She asks a question in her book: ā€œThe U.S. and the Western world have finally begun to wake up to the threat of attack from Russia ā€¦ what can the West do about it?ā€

From my perspective as a Ukrainian by birth, American by choice, and gay by nature, the answer is simple: What if we start not talking about values but implementing them? What if, bit by bit, we will all be together to fight for democratic values and principles? And maybe Russians will never choose another matrix, but our matrix will be stronger and more resilient to the ā€œEvil Empire.ā€          

Bogdan Globa is the president and co-founder of QUA – LGBTQ Ukrainians in America, a former assistant to the Human Rights Committee chair in the Verkhovna Rada (2014-2016) co-founder and CEO of Fulcrum (2012-2016), an LGBTQI+ organization.  

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Commentary

LGBTQ people deserve freedom, a sense of home, and belonging

Latoya Nugent found refuge in Canada after fleeing Jamaica

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Latoya Nugent, center, at the March for LGBTQ+ Rights in Toronto on May 16, 2024. (Photo courtesy of Rainbow Railroad)

Seven years ago, my fight for queer liberation in notoriously homophobic Jamaica culminated in a violent and brutal unlawful arrest and detention. This was the peak of decades of persecution due to my sexual orientation and work as a queer human rights defender and activist. It completely broke me and silenced me. I suffered severe emotional trauma, from which I am still recovering years later. 

Following that life-threatening arrest, I became a shell of who I once was. I cut off communication with my community for several years, unable to face my fear of the police and the hostility of the world around me. 

In 2022, I was one of the 9,591 at-risk LGBTQI+ people who reached out to Rainbow Railroad for help. Through the organizationā€™s Emergency Travel Support (ETS) program, which relocates at-risk LGBTQI+ people and helps them make asylum claims in countries like the U.S., I resettled in Canada where Iā€™ve been living safely with dignity and pride. 

This Pride Month, Iā€™m reflecting on what it means to be safe. Who has access to safety and why others are excluded from it. What is our collective role and responsibility in expanding safety for our queer and trans communities, especially those in the over 60 countries that criminalize LGBTQI+ people? 

Safety means different things to different people depending on our experiences and journeys. For me, itā€™s the difference between suffering and thriving, feeling worthless and worthy, and feeling hopeless and hopeful. It is the difference between displacement and belonging. 

Rainbow Railroad recently released a report that examines the state of global LGBTQI+ persecution, drawing on data from 15,352 help requests spanning 100+ countries. This report is significant for several reasons, chief among them is the reality that no other organization or government captures the breadth and depth of data on LGBTQI+ forced displacement, perpetuating the invisibility of queer individuals in humanitarian responses. The report is an important contribution to the discourse on the intersection of queer identity, LGBTQI+ persecution, forced displacement, and humanitarian protection systems. 

Of all the data and insights uncovered in the report, I was most struck by one statistic ā€” 91 percent of at-risk LGBTQI+ individuals relocated through the ETS program reported an improved sense of personal safety. This statistic is particularly personal to me because ETS was the only relocation option accessible to me in 2022 when I reached out to Rainbow Railroad for help. 

I am in that 91 percent because I am now thriving. I feel worthy. I am hopeful about life. And I belong. 

Today, among the 120 million forcibly displaced people around the world, queer and trans individuals face compounded complications from homophobia and transphobia while trying to access protection and safety. And while the anti-gender movement continues to swell in some states, I firmly believe that the U.S. remains a global leader in refugee resettlement ā€” which is why the U.S. government must uphold its international obligations and reverse its recentĀ executive orderĀ that imposes severe restrictions on the right to seek asylum.Ā 

Queer and trans individuals deserve freedom, a sense of home, and belonging ā€” realities that flourish only when rooted in the bedrock of safety. 

There is a lot more work to be done. It’s challenging. It’s complex. It’s costly. But I have experienced firsthand what the transformative impact of Rainbow Railroadā€™s work has on someone’s life ā€” that ability to lift people out of danger into safety is something worth celebrating this Pride. 

Latoya Nugent is the head of engagement for Rainbow Railroad.

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Reflecting on Center Faithā€™s Pride interfaith service

Much work to be done before welcoming the world in 2025

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(Photo by WINDCOLORS/Bigstock)

ā€œWe must not rest! We must not rest! We must not rest!ā€ These words rang out in Foundry Methodist Church during Center Faithā€™s recent 2024 Pride Interfaith Service. Rev. Cathy Alexander, associate pastor at the Metropolitan Community Church (MCC)-Washington, DC, implored everyone in attendance to keep fighting ā€œuntil the doors of churches and temples and houses of faith open wide in welcome to all people.ā€ She quoted Reverend Troy Perry, founder of the first MCC church in 1968, from the 2000 Millennium March for Equality. 

It was a moving reminder of the many LGBTQ elders who have passed on, who have fought for LGBTQ rights today and made this service, held in a rainbow draped church, possible. This was especially meaningful as this yearā€™s service also remembered Allan Armas ā€” co-founder of the Pride Interfaith Service ā€” who died this past October. 

Held on a drizzly evening, the service began with an opening drum call to gather by members of the Unity Fellowship Church of Washington, D.C., and a procession of all presenters. Church Elder and Unity Fellowship Pastor Akosua McCray offered a libation to the ancestors, like Armas, who won many of the rights that LGBTQ individuals have today. ā€œLet us together call out their names and invite their spirit here today,ā€ McCray shared. ā€œCarlton Smith,ā€ an attendee shouted from the back. ā€œAllan Armus,ā€ said another. ā€œMarsha P. Johnson.ā€ ā€œBishop Thomas Gumbleton.ā€ With each name, McCray filled a red vase with water in their honor. 

Thus commenced the 41st annual Pride Interfaith Service, focused on the radical past, present, and future of LGBTQ interfaith action in the nationā€™s capital. The three-part service resonated with Capital Prideā€™s theme of ā€œTotally Radical!ā€ and included representatives from the DC LGBTQ+ Community Center and Mayorā€™s Office of LGBTQ Affairs. McCrayā€™s Libation was the first part of the creation and blessing of a sacred space, featuring a call to the elements, directions and divine by Jonathan White of Stone Circle Wicca, a call to prayer by Nabeel Kirmani and translated by Sister Michelle Munson of Muslims for Progressive Values, and an opening prayer by Rev. Thomas Wieczorek from the National Catholic Church, among others. 

GenOut Chorus, the youth chorus for the Gay Menā€™s Chorus of Washington, D.C., provided music, opening with Philip Silveyā€™s ā€œAlways a Place for You.ā€ Their song began a reflection on the radical origins of the Pride Interfaith Service all the way back to the 1960s. Reverend Elder Robert ā€œMichaelā€ Vanzant, a Doctor of Theology at the Faith Temple and one of the pioneers of the Pride Interfaith Service, recounted his own journey from a fundamentalist rural Southern community all the way to the steps of the Temple Church of God in Christ on Sunday, Sept. 19, 1982. 

Together, he and 16 others ā€œembraced being same-gender loving and created a gathering of predominantly people of color, called a Third World gathering, to create a community for our sacred selves.ā€ They gathered with signs, his reading ā€œMy house shall be called a house of prayer for all peopleā€ (Isaiah 56:&, Mark 11:17), after a Church elder Dr. James Tenney was told by the Bishop that by including LGBTQ+ individuals at All Souls Church DC, he had excommunicated himself from the Church. The bishop warned that Tenneyā€™s problem was that he had no shame so the group gathered that Sunday morning before and after church ā€œbearing witchess that we lived our lives without shame.ā€ Thus Faith Temple was born. 

Rev. Cathy Alexander reflected on MCCā€™s own history, followed by Rev. Eric Eldrith, Pagan clergy with Circle Sanctuary, Kirmani, Jonathan White, myself, and Armasā€™s best friend cellist John Kaboff sharing fond memories and words of love and life about Armas. Eldritch spoke to Armasā€™s radical welcome of him as an ex-ex-gay fundamentalist to a Radical Faerie to Pagan clergy at Circle Sanctuary. This tribute spoke to the importance of all including faith communities beyond Abrahamic traditions. Pagan, Wiccan, and folk magic communities have for centuries been places of belonging and acceptance for LGBTQ+ people but are normally excluded from LGBTQ+ religious historical narratives. Armas challenged this exclusion. 

ā€œHis deeply held Jewish faith,ā€ White explained, ā€œled him to care passionately about justice and liberation for all people, especially LGBTQ+ people, and to pursue justice as part of his own spiritual journey. He was humane, kind, thoughtful–he was a mensch. May his memory be a blessing.ā€ He led his community surrounded by elders until he himself became one; one of the far too few LGBTQ+ elders who see the realization of their efforts. White celebrated this queer elderhood in Armasā€™s faith community, of bringing his experiences and wisdom to the community he helped to create. Kaboff played a Jewish funeral piece–one performed at an annual memorial service Armas founded, and Rabbi Jake Beilin-Singer blew the shofar, an instrument sounded during High Holy Day services, in recognition of his leadership. 

Armasā€™s radical welcome has made LGBTQ faith experiences possible, from radical living as interfaith families, to radical justice through collective liberation, to radical presents through living as authentic selves, and radical leadership through DCā€™s LGBTQ+ religious leaders including the first lesbian rabbi, Julie Spitzer, at the Baltimore Hebrew Congregation in 1987. Even radical pride from that first Pride Interfaith Service in 1983. 

During this time when over 500 anti-LGBTQ bills have been introduced in state legislatures across the country, lay member of Sunstone Chapel Ebony C. Peace called us to remember, ā€œhatred continues to come our way in full force because our liberation threatens their control. The liberation of all people threatens them. They are coming at us strong because we ourselves have become stronger.ā€ It is only through love, Peace shared, that we can drive out hatred. This was especially true when two protestors interrupted the service, and were met with all attendees singing ā€œThis Little Light of Mineā€ to drown out their voices as ushers escorted them outside. 

The service ended by envisioning this future of love, including radical inclusive love in faith communities and interfaith relationships that imagine a future of collaboration with newly established groups like Queerly Gathered, introduced by Presbyterian minister Matt Nabinger and Cali Bronkema. 

Richmond looked ahead toward World Pride to be held in D.C. in 2025. Just as attendees committed this yearā€™s service to ā€œdemonstrating the breath, depth, and sincerity of our faith, exposing the lie that anti-gay fundamentalists have a monopoly on faith and religion,ā€ Pride Interfaith Service planner Jonah Richmond shared, next yearā€™s service will include people from around the world remembering their LGBTQ religious histories, celebrating their presents, and pushing for LGBTQ+ religious liberation and community. It will celebrate LGBTQ elders of faith from around the world. As Alexander said, we must not rest! There is much work to be done before welcoming the world at the next service on June 3, 2025.Ā 

Emma Cieslik served as a historian for this yearā€™s Pride Interfaith Service.

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To comply or not to comply is not the question

Implementation of pro-LGBTQI+ rulings in Botswana and Namibia is unsatisfactory

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(Washington Blade photo by Michael Key)

Over the past five years, the highest courts in Namibia and Botswana have made significant decisions in favor of minority groupsā€™ human rights through favorable judgments and court orders. However, the implementation of these orders related to the rights of LGBTQI+ in Botswana and Namibia has not been satisfactory so far. 

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 criminalization 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 decriminalized consensual same-sex sexual conduct. In May 2023, the Supreme Court of Namibia ordered the government to recognize 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.

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 recognized 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 groupā€™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+ organizations. 

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 ā€œall persons.ā€ According to anecdotal evidence based on the experiences of individuals who sought legal gender recognition, they are instructed to acquire individualized court orders, a complete misinterpretation of the courtā€™s instructions, burdening the courts to issue duplicate orders. 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.Ā 

With the decriminalization court order, the attorney general acted in contempt of the judgment 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 decriminalize, as indicated by a statement from SALC (Southern Africa Litigation Center) and by many contributors to this issue; there is no need to debate; the court has decided.

In Namibiaā€™s case, compliance with the court order means recognizing 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. Digashuā€™s experience: 

ā€œIn 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.ā€

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 sensationalĀ headlineĀ ā€œSupreme Court gives legal status to same-sex marriages,ā€ 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 put pressure on government officials. Unfortunately, parliamentĀ responded with a marriage bill that contradicted the judgment, Instead of clarifying what the ruling means and whom it affects. Public officials reflect legislatorsā€™ 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.Ā 

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 visitorā€™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.

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 publicizing 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 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 organizations.

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