Faith Nyasuguta
Namibia’s high court has overturned a law that criminalized gay sex, marking a significant victory for LGBTQ+ rights activists in a region where such progress has often faced setbacks.
The overturned law, which banned “sodomy” and “unnatural offences,” was inherited from South Africa when Namibia gained independence in 1990. Although the ban was seldom enforced, activists argued that it perpetuated discrimination and violence against LGBTQ+ individuals, including mistreatment by the police.
Friedel Dausab, the LGBTQ+ activist who spearheaded the case, expressed his joy over the court’s decision. “I feel elated. I’m so happy. This really is a landmark judgment, not just for me, but for our democracy,” he said. Sitting next to his mother, Dausab emphasized the importance of this ruling for families, hoping it would end estrangement and promote acceptance.
The high court’s judgment, delivered by three judges, declared that the laws were discriminatory under Namibia’s constitution, pointing out that consensual sexual conduct between a man and a woman was not criminalized.
The judges questioned the rationale behind criminalizing gay men, stating, “What threat does a gay man pose to society, and who must be protected against him? We are of the firm view that the enforcement of private moral views of a section of a community (even if they form the majority of that community), which are based to a large extent on nothing more than prejudice, cannot qualify as such a legitimate purpose.”
As of now, it is unclear whether Namibia’s government will appeal the ruling. Officials from the attorney general’s office were unavailable for comment.
UNAids, the UN agency focused on global action against HIV and AIDS, welcomed the ruling. The agency noted that the law had exacerbated discrimination against LGBTQ+ individuals in healthcare settings, deterring many from seeking HIV testing and treatment.
Anne Githuku-Shongwe, UNAids’ regional director for East and Southern Africa, stated, “By decriminalizing same-sex relationships, Namibia creates a safer environment for LGBTQ+ communities.”
Namibia has shown relatively high tolerance towards LGBTQ+ individuals compared to other African nations. A pan-African survey conducted between 2019 and 2021 ranked Namibia third out of 34 countries regarding acceptance of gay neighbors, with 64% of respondents indicating they would either like or be indifferent to having gay neighbors.
However, recent high-profile court cases have sparked a conservative backlash. In March 2023, the supreme court overturned a lower court’s decision to grant citizenship to the children of a gay couple born via surrogacy abroad.
In May, the court recognized same-sex marriages conducted abroad between Namibian citizens and foreign spouses. In response, Namibia’s parliament passed a bill defining marriage as “between persons of the opposite sex,” although it has not yet been signed into law by the president.
Following these legal battles, activist groups reported a rise in hate crimes, with six LGBTQ+ Namibians killed since the bill’s passage, according to the campaign group Equal Namibia.
Globally, 64 countries criminalize same-sex relations, with 31 of these in Africa, as reported by Human Dignity Trust, a UK legal charity that supported Dausab’s case. The progress on LGBTQ+ rights across Africa is uneven.
While Namibia’s neighbors Angola and Botswana decriminalized gay sex in 2021 and 2019, respectively, other countries have moved in the opposite direction. Uganda recently imposed the death penalty for “aggravated homosexuality,” and Ghana’s parliament passed a bill that could sentence individuals to up to five years in prison for promoting LGBTQ+ activities, although the president has withheld his signature pending a court challenge.
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