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LGBTQ+ Namibians await landmark court ruling on gay sex law

Equal Namibia participants marching at the Namibian Pride Parade, where the call for the decriminalisation of the Apartheid-era sodomy law was a focal point at the march in Windhoek
interview

Equal Namibia participants marching at the Namibian Pride Parade, where the call for the decriminalisation of the Apartheid-era sodomy law was a focal point at the march in Windhoek, November 2021. Omar van Reenen/Handout via Thomson Reuters Foundation

What’s the context?

Namibia's High Court decision on whether to decriminalise gay sex is expected in June

  • Namibia's High Court to rule on sodomy law
  • The law impacts access to healthcare and labour rights 
  • Six LGBTQ+ people killed in the last year - rights group

LONDON - Namibian LGBTQ+ advocates hope a High Court ruling next month will decriminalise gay sex by overturning the colonial-era sodomy law, offering a ray of hope even as parliament tries to crack down on same-sex relationships.

"The courts (are) our last hope and our beacon of liberation," Omar van Reenen, who is co-founder of the rights group Equal Namibia, told Context in an interview.

LGBTQ+ advocate Friedel Dausab brought the appeal against Namibia's long-standing sodomy law, arguing the criminalisation of sodomy and related offences was unconstitutional. Arguments were heard in October and the court is expected to rule in June. 

The court decision comes at a crucial time, in a year in which Namibia has seen a number of fatal hate crimes and two parliamentary bills seeking to limit LGBTQ+ rights, said van Reenen, who lives in the southern African country's second-largest city, Walvis Bay. 

Though parliament passed both new bills, they are currently awaiting presidential approval to be passed into law.

Omar van Reenen at the University of Pretoria, Human Rights and Democratisation in Africa Master Program welcoming ceremony in February 2022

Omar van Reenen at the University of Pretoria, Human Rights and Democratisation in Africa Master Program welcoming ceremony in February 2022. Omar van Reenen/Handout via Thomson Reuters Foundation

Omar van Reenen at the University of Pretoria, Human Rights and Democratisation in Africa Master Program welcoming ceremony in February 2022. Omar van Reenen/Handout via Thomson Reuters Foundation

Despite Namibia being seen by many in the West as a "poster child for democracy and rule of law", van Reenen said the two bills aimed to further marginalise LGBTQ+ Namibians, but had not had the same attention as similar measures in Uganda and Ghana.

Uganda's Anti-Homosexuality Act, which was signed into law in May last year, includes the death penalty for "aggravated homosexuality". 

In Ghana, parliament unanimously passed a bill in February to lengthen jail terms for gay sex and curtail the rights of LGBTQ+ people and those accused of promoting lesbian, gay or other minority sexual or gender identities.

Van Reenen hopes the sodomy law will be struck down, providing broader protection against such efforts in Namibia. 

"The case has the potential to give our community the legal protection that our constitution has always bestowed, but our politicians have refused to enshrine," said van Reenen.  

Van Reenen, who uses the pronouns they/them, said while the sodomy law was rarely enforced, it had far-reaching influence on other policies. 

The law has been cited as a reason not to provide condoms in prisons, despite the spread of HIV/AIDS among incarcerated men. Legislators also excluded protection for discrimination against sexual orientation in the country's updated labour law in 2007, despite it being grounds for protection in earlier legislation. 

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Mixed record on legal recognition

Namibia's record on the legal recognition of LGBTQ+ rights has been mixed in two cases in the last year. The Supreme Court affirmed residency rights for same-sex couples married outside the country where one spouse did not have Namibian citizenship, but overturned a decision providing the right to citizenship for children born through surrogacy to same-sex parents.

"The same-sex marriage ruling gave us our first precedent that we could stand on and say that the constitution recognises and sees us," said van Reenen.

The ruling prompted a backlash from conservative NGOs, politicians and churches, followed by countrywide protests. The last year has also seen a rise in hate crimes, according to Equal Namibia, which has reported that six LGBTQ+ Namibians were killed in hate-motivated attacks. 

Parliament has passed two private member's bills in the last year, seeking to counter the court decision on same-sex marriages abroad, one by defining marriage as a union "between persons of the opposite sex". But both bills have yet to be signed into law by President Nangolo Mbumba.

'We need more leadership'

These bills have further "fanned the flames of hate," said van Reenen. "It has really given people the thought that you have license to kill, discriminate, harass and attack queer people."

While van Reenen has faith in the justice system, the activist does not want to rely on the courts alone in an increasingly hostile environment for LGBTQ+ Namibians. 

"We need more leadership, and both the executive and the legislative (levels) are making the situation worse or doing nothing at all," said van Reenen. 

While preparing a contingency safety plan in case of a further backlash as result of the court decision, van Reenen hopes the decision on the sodomy law will pave the way for greater LGBTQ+ inclusion. 

"We need some sort of validation that we exist and belong in Namibia, and that the constitution protects us too."

(This story is part of a series supported by Hivos's Free To Be Me programme)


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