Credit: Oleksandr Rupeta/NurPhoto via Getty Images
By Inés M. Pousadela
MONTEVIDEO, Uruguay, Jul 8 2024 – In June, the Namibian High Court struck down two sections of the country’s Sexual Offences Act that criminalised consensual sexual relations between men, finding them unconstitutional. While hardly anyone has been convicted for decades, the fact that their relationships were criminalised forced gay men to live in fear, perpetuated stigma and denied them recognition as rights holders, enabling discrimination, harassment and abuse.
In decriminalising same-sex relations, Namibia follows in the footsteps of Mauritius, which did so in 2023. In both countries, the criminalisation of consensual same-sex relations dated back to colonial times. Colonial overlords imposed these criminal provisions and countries typically retained them at independence, long after the UK had changed its laws.
Namibia gained independence from South Africa in 1990 but retained the criminal provisions South Africa inherited from the UK. South Africa then decriminalised male same-sex conduct in 1994 – sex between women was never criminalised – and recognised same-sex marriage in 2006. But Namibia hadn’t followed the same path – until now.
A concerning regional landscape
Following the decriminalisation of same-sex relations, Namibia is ranked 56th out of 196 countries on Equaldex’s Equality Index, which ranks countries according to their LGBTQI+ friendliness. Only three African countries are ranked higher: South Africa, Cabo Verde and the Seychelles.
Today, 66 countries around the world criminalise same-sex relationships: 31 in Africa, 22 in Asia and the Middle East, six in the Pacific and five in the Caribbean. A disproportionate number are members of the Commonwealth, the alliance mostly made up of countries colonised by the UK. Thirteen of the 29 Commonwealth countries that criminalise same-sex relations are African. This often comes with harsh prison sentences – up to 14 years in Kenya and up to life imprisonment in Sierra Leone and Tanzania. In northern Nigeria and Uganda, the death penalty can apply.
Some Commonwealth African states that have long criminalised same-sex relations, including Ghana, Kenya and Uganda, are experiencing a strong conservative backlash. Typically, small gains in rights have provoked disproportionate responses from anti-rights forces, who assert that LGBTQI+ rights are part of an imported western agenda – even though it’s criminalisation that was imported, and the anti-rights backlash is lavishly funded by foreign forces.
Intertwined legal cases
Same-sex marriage reached Namibia’s courts long before same-sex relationships were no longer a crime. In 2017, two men who’d married in South Africa, one Namibian and the other South African, filed a court application to prevent the South African partner and the couple’s son being treated as ‘prohibited immigrants’. They argued that the Department of Home Affairs and Immigration had discriminated against them on the basis of their sexual orientation and sought recognition of their marriage and joint guardianship of their son. A similar case was filed by a female couple – one Namibian and the other German – and the cases were merged.
In early 2018, the male couple won a petition allowing the South African partner to enter Namibia to be with his husband and son. But in January 2022, the High Court rejected the petition to recognise same-sex marriages celebrated abroad. The judges expressed sympathy for the applicants, but said they couldn’t overturn previous rulings by Namibia’s Supreme Court. However, this raised campaigners’ hopes of a favourable decision in a Supreme Court appeal.
Indeed, in May 2023, the Supreme Court recognised same-sex marriages performed abroad between Namibian citizens and foreign nationals. But the court also said homosexuality was a complex issue and same-sex marriage should be dealt with by parliament.
Meanwhile, same-sex relations between consenting adult males remained a criminal offence. But the time was ripe: in 2021, Namibian LGBTQI+ activists held the country’s largest-ever Pride celebration, which included calls for the repeal of criminalisation. And in 2022, a few months after the High Court decision not to recognise foreign same-sex marriages, LGBTQI+ activist Friedel Dausab challenged the common law offence of sodomy in court. Supported by the Human Dignity Trust, he argued that criminalisation of his identity was incompatible with his constitutional rights.
The High Court handed down its positive decision on 21 June 2024. The judges agreed that laws criminalising same-sex relationships amounted to unfair discrimination and were therefore unconstitutional and invalid.
Conservative backlash
LGBTQI+ advocates around the world welcomed the court’s decision, as did UNAIDS, the UN agency leading the global effort to end HIV/AIDS. But by the time the ruling came, resistance was underway.
In July 2023, in response to the Supreme Court ruling on same-sex marriage, parliament’s upper house quickly passed a bill banning same-sex marriages, including those contracted abroad. The bill would make it an offence to perform, participate in, promote or advertise these marriages, punishable by up to six years in prison. It was subsequently passed by parliament’s lower house and is currently awaiting the president’s decision to assent or veto. An appeal against the court’s decriminalisation decision also can’t be ruled out.
The way forward
While the direction of change so far makes it an example for the region, Namibia still has a long way to go. Outstanding issues include comprehensive protection against discrimination, marriage equality and adoption rights, recognition of non-binary genders, legalisation of gender reassignment and a ban on ‘conversion therapy’, a practice UN experts consider akin to torture.
Social change should be as much a priority as legal progress. The Equality Index makes it clear: social attitudes lag behind laws, with public homophobia a persistent problem. Moral panics, episodically mobilised by anti-rights reactions, cause public opinion to fluctuate, with no decisive majority in favour of equality. This means legal change won’t be enough, and won’t continue unless the climate of opinion changes.
In Namibia, as elsewhere, there’s a tug-of-war between forces fighting for rights and those resisting progress. It’s now a top priority for Namibian LGBTQI+ activists to shift attitudes. In doing so, they should show solidarity with their peers in less tolerant environments and become a source of hope beyond the country’s borders.
Inés M. Pousadela is CIVICUS Senior Research Specialist, co-director and writer for CIVICUS Lens and co-author of the State of Civil Society Report.
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