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Could Namibia decriminalise same-sex relations?

People wear colourful costumes during the celebration of LGBTQ+ rights at the annual Pride Parade in Johannesburg, South Africa, October 28, 2023. REUTERS/Sumaya Hisham

People wear colourful costumes during the celebration of LGBTQ+ rights at the annual Pride Parade in Johannesburg, South Africa, October 28, 2023. REUTERS/Sumaya Hisham

What’s the context?

Namibia courts could decriminalise gay sex, but the country has a mixed record on recognising LGBTQ+ rights

WINDHOEK - Namibia's High Court is set to deliver a judgment in May in a case that could see the decriminalisation of gay sex in the southern African country.

LGBTQ+ advocate Friedel Dausab brought the case against the government, arguing that the criminalisation of sodomy and related offences was unconstitutional. Arguments were heard by the court in October.

Here is what you need to know.

What is Namibia's law on same-sex relations?

The laws under deliberation are common law offences, inherited from the period when Namibia was a South African colony from the end of World War Two to 1990.

Police officers can arrest people suspected of committing the offence of sodomy under the Criminal Procedure Act 51 of 1977. Dasuab argued that criminalising sodomy and "unnatural sexual offences" contravenes his constitutional rights to equality, dignity and freedom of association.

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A 2021 Ministry of Justice report recommended the laws be repealed. The report concluded the law interfered with the constitutional right to dignity and that "the criminalisation of sodomy law inevitably causes some to believe mistakenly that homosexuality itself is illegal in Namibia."

While the legislation has rarely been enforced, Daniel Digashu, an LGBTQ+ advocate based in the city of Otjiwarongo in central northern Namibia and former litigant in a separate case against the government, said the law promotes "the exclusion, discrimination and hate of the whole LGBTQI+ community."

"The sodomy laws violate multiple constitutional rights, including rights to privacy and dignity, rights to freedom of expression and association," Digashu, a consultant for the Southern African Litigation Centre in Johannesburg, told Openly.

Has Namibia made progress on other LGBTQ+ rights?

Namibia has had a mixed record on the legal recognition of LGBTQ+ rights this year. The Supreme Court affirmed residency rights for same-sex couples married outside the country, but also overturned a decision providing the right to citizenship for children born through surrogacy to same-sex parents.

Digashu was a litigant in a case that led to the Supreme Court ruling in May that same-sex marriages conducted outside the country had to be recognised by the government. The ruling sparked a backlash from conservative NGOs, politicians and churches, followed by countrywide protests.

In a bid to circumvent the court decision to recognise same-sex marriages made outside the country, parliament, led by ruling SWAPO party member Jerry Ekandjo, passed a bill in July banning the unions.

The bill is now with President Hage Geingob, who has requested an opinion from the attorney-general before making a decision on whether to sign it into law.

In 2021, a same-sex couple won the right for their child, born through surrogacy in South Africa, to be granted Namibian citizenship.

In a test case, the Namibian High Court ruled a paternity test was not needed to prove that Yona Luhl-Delgado is the son of Namibian Phillip Luhl and his Mexican husband, Guillermo Delgado.

But the decision was overturned by the Supreme Court in March this year, after an appeal by the Ministry of Home Affairs and Immigration.

What impact could decriminalisation have?

Hildegard Titus, a LGBTQ+ activist with Namibia Pride, based in the capital Windhoek, said that decriminalisation could "create more acceptance and tolerance for the queer community in Namibia".

"Queer people would be able to have legal frameworks and legal safeties, as everyone else (does)," she said.

Decriminalisation could pave the way for LGBTQ+ Namibians to be covered by anti-discrimination laws, and to have marriage equality and equal rights under family law, said Hildegard.

Several civil society organisations such as Equal Namibia have been fighting for the sodomy law to be repealed, aiming to achieve greater access to healthcare and a reduction of the stigma and violence experienced by the LGBTQ+ community.

If gay sex and related offences are decriminalised in Namibia, it would join several countries in southern Africa that have repealed these laws in the past decade, including Angola, Botswana, Seychelles, Mozambique and Lesotho.

This story is part of a series supported by HIVOS's Free To Be Me programme.

(Reporting by Lisa Ossenbrink; Editing by Sadiya Ansari and Jon Hemming.)


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