MONTEVIDEO, Uruguay, Jul 8 (IPS) – In June, Namibia’s Supreme Court struck down two sections of the country’s Sexual Offences Act, which criminalised consensual sexual relations between men and declared them unconstitutional. Although almost no one has been convicted in decades, criminalising their relationships forced gay men to live in fear, perpetuated stigma and denied them recognition as rights holders, enabling discrimination, harassment and abuse.
By decriminalizing same-sex relationships, Namibia is following in the footsteps of Mauritiuswhich happened in 2023. In both countries, the criminalisation of consensual same-sex relations dates back to colonial times. Colonial rulers imposed these criminal provisions, and countries typically retained them at independence, long after the UK changed its laws.
Namibia gained independence from South Africa in 1990, but retained the criminal laws that South Africa inherited from the United Kingdom. South Africa subsequently decriminalized homosexual acts between men in 1994 – sex between women has never been criminalized – and recognized same-sex marriage in 2006. But Namibia had not followed that path – until now.
A worrying regional landscape
After decriminalizing same-sex relationships, Namibia ranks 56th out of 196 countries on the Equaldex ranking. Equality Indexwhich ranks countries based on their LGBTQI+ friendliness. Only three African countries are ranked higher: South Africa, Cape Verde and the Seychelles.
Today, 66 countries around the world criminalize 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 Commonwealththe alliance, which is made up mainly of countries colonised by the UK. Thirteen of the 29 Commonwealth countries that criminalise same-sex relations are African. This often carries heavy prison sentences – up to 14 years in Kenya and life in Sierra Leone and Tanzania. In northern Nigeria and Uganda, the death penalty can be imposed.
Some African Commonwealth states that have long criminalised same-sex relationships, including Ghana, Kenya and Uganda, are experiencing a sharp conservative backlash. More often than not, small gains in rights have provoked disproportionate responses from anti-rights forces, who argue that LGBTQI+ rights are part of an imported Western agenda – even though it is the criminalization that is imported, and the anti-rights backlash is lavishly funded by foreign forces.
Intertwined lawsuits
Gay marriage reached the courts of Namibia long before homosexual relations were no longer a crime. In 2017Two men who had married in South Africa, one Namibian and one South African, petitioned the court to prevent the couple’s South African partner and son from 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 custody of their son. A similar case was brought by a female couple – one Namibian and one German – and the cases were consolidated.
In early 2018, the male couple won a petition that allowed the South African partner to enter Namibia to be with his husband and son. But in January 2022, the High Court ruled turned down the petition to recognize same-sex marriages performed abroad. The judges expressed sympathy for the applicants but said they could not overturn previous rulings by the Namibian High Court. However, this raised the hopes of campaigners for a favourable decision in an appeal to the Supreme Court.
In May 2023, the Supreme Court did indeed rule recognized same-sex marriages performed abroad between Namibian citizens and foreigners. But the court also said that homosexuality is a complex issue and that same-sex marriage should be dealt with by parliament.
Meanwhile, same-sex relationships between consenting adult men remained criminalized. But the time was ripe: in 2021, Namibian LGBTQI+ activists held the country’s largest-ever Pride celebration, also calling for the criminalization to be repealed. And in 2022, a few months after the Supreme Court’s decision not to recognize foreign same-sex marriages, LGBTQI+ activist Friedel Dausab challenged the common law offense of sodomy in court. Backed by the Trust in human dignityHe argued that the criminalization of his identity was incompatible with his constitutional rights.
The Supreme Court issued a positive ruling on June 21, 2024. The justices agreed that laws criminalizing same-sex relationships amount to unfair discrimination and are therefore unconstitutional and invalid.
Conservative backlash
LGBTQI+ activists around the world welcomed the court’s decision, just like UNAIDSthe UN agency that leads the global effort to end HIV/AIDS. But by the time the ruling came, a backlash was already underway.
In July 2023, in response to the Supreme Court ruling on same-sex marriage, the upper house of parliament quickly passed a law Bill banning gay marriageincluding those contracted abroad. The bill would make it a crime to contract, participate in, promote or advertise these marriages, punishable by up to six years in prison. It was subsequently passed by the lower house of parliament and is currently awaiting the president’s decision to approve or veto it. An appeal against the court’s decriminalization decision cannot be ruled out either.
The way forward
While the direction of change so far makes it a model for the region, Namibia still has a long way to go. Outstanding issues include comprehensive protections against discrimination, marriage equality and adoption rights, recognition of non-binary genders, legalization of gender reassignment, and a ban on “conversion therapy,” a practice that 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, occasionally mobilized by anti-rights backlash, cause public opinion to fluctuate without a decisive majority in favor of equality. This means that legal change will not be enough and will not happen unless the climate of opinion changes.
In Namibia, as elsewhere, there is a tug of war between forces fighting for rights and those resisting progress. Changing attitudes is now a top priority for Namibian LGBTQI+ activists, showing solidarity with their peers in less tolerant environments and becoming a source of hope beyond the country’s borders.
Ines M. Pousadela is CIVICUS Senior Research Specialist, Co-Director and Writer for CIVICUS lens and co-author of the State of Civil Society Report.
Follow @IPSNewsUNBureau
Follow IPS News UN Bureau on Instagram
© Inter Press Service (2024) — All rights reservedOriginal source: Inter Press Service
