LGBTQ+ Namibians Await Landmark Court Ruling on Gay Sex Law

What is the context?

Namibia High Court decision on decriminalization of gay sex expected in June

  • Namibia High Court to rule on sodomy law
  • The law impacts access to health and labor rights
  • Six LGBTQ+ people murdered in the last year: human rights group

LONDON – Namibia’s LGBTQ+ advocates hope a High Court ruling next month will decriminalize gay sex by repealing the colonial-era sodomy law, offering a glimmer of hope even as parliament tries to crack down on people-to-people relationships. of the same sex.

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

LGBTQ+ advocate Friedel Dausab brought the appeal against Namibia’s old sodomy law, arguing that the criminalization of sodomy and related crimes 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 series of fatal hate crimes and two parliamentary bills seeking to limit LGBTQ+ rights, said van Reenen, who lives in Walvis, the second largest city in the southern African country. Bay.

Although parliament approved both new bills, they are currently awaiting presidential approval to sign them into law.

Omar van Reenen at the welcome ceremony for the Master's Program in Human Rights and Democratization in Africa at the University of Pretoria in February 2022

Omar van Reenen at the welcome ceremony for the Master’s Program in Human Rights and Democratization in Africa at the University of Pretoria in February 2022. Omar van Reenen/Handout via Thomson Reuters Foundation

Omar van Reenen at the welcome ceremony for the Master’s Program in Human Rights and Democratization in Africa at the University of Pretoria in February 2022. Omar van Reenen/Handout via Thomson Reuters Foundation

Despite many in the West seeing Namibia as a “model of democracy and the rule of law”, van Reenen said the two bills were aimed at further marginalizing LGBTQ+ Namibians, but had not received the same attention than similar measures in Uganda and Ghana.

Uganda’s Anti-Homosexuality Law, which was enacted in May last year, includes the death penalty for “aggravated homosexuality.”

In Ghana, parliament unanimously passed a bill in February to lengthen prison sentences for gay people and restrict the rights of LGBTQ+ people and those accused of promoting lesbian, gay or other sexual or gender identities. minorities.

Van Reenen hopes the sodomy law will be repealed, 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 afforded, but our politicians have refused to enshrine it,” van Reenen said.

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

The law has been cited as a reason for not providing condoms in prisons, despite the spread of HIV/AIDS among incarcerated men. Lawmakers also excluded discrimination protection against sexual orientation in the country’s updated labor law in 2007, even though it was a protected ground in previous legislation.

Mixed record in terms of legal recognition

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

“The same-sex marriage ruling gave us our first precedent that we could stand on and say that the Constitution recognizes us and sees us,” van Reenen said.

The ruling sparked a backlash from conservative NGOs, politicians and churches, followed by protests across the country. Last year also saw a rise in hate crimes, according to Equal Namibia, which reported that six LGBTQ+ Namibians were killed in hate-motivated attacks.

Parliament passed two private members’ bills last year seeking to counter the court ruling on same-sex marriages abroad, one of them defining marriage as a union “between people of the opposite sex”. But both bills are yet to be signed into law by President Nangolo Mbumba.

“We need more leadership”

These bills have “further fanned the flames of hate,” van Reenen said. “It’s really given people the idea that you have a 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 solely on the courts in an increasingly hostile environment for LGBTQ+ Namibians.

“We need more leadership, and both the executive and the legislature are either making the situation worse or doing nothing at all,” van Reenen said.

As he prepares a contingency security plan in case of a new backlash as a result of the court decision, van Reenen hopes that the decision on the sodomy law will pave the way for greater LGBTQ+ inclusion.

“We need some kind of validation that we exist and belong to Namibia, and that the Constitution also protects us.”

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