LGBT rights in Namibia

Lesbian, gay, bisexual, and transgender+ (LGBT+) persons in Namibia face legal challenges not experienced by non-LGBT residents. Discrimination based on sexual orientation and gender identity is not banned in Namibia, and households headed by same-sex couples are not eligible for the same legal protections available to opposite-sex couples. However, despite the lack of legal rights experienced by Namibian LGBT citizens, acceptance and tolerance of LGBT people is much higher than in most African countries.[1]

LGBT rights in Namibia
Namibia (orthographic projection).svg
StatusMale illegal since 1920
(not enforced, legalization proposed)
Gender identityTransgender people allowed to change gender
MilitaryNo
Discrimination protectionsNo
Family rights
Recognition of relationshipsNo
AdoptionNo

The climate for LGBT people in Namibia has eased in recent years. The country's leading LGBT advocacy group is OutRight Namibia, formed in March 2010 and officially registered in November 2010. It has organised Namibia's first pride parades and seeks to be "a voice for lesbian women, gay men, bisexuals and transgender and intersex people in Namibia".[2] Other LGBT groups include MPower Community Trust, which provides awareness of sexual health for gay and bisexual men, the Namibian Gays and Lesbian Movement, which provides counselling and advice to LGBT people and organises educational programs to raise awareness of LGBT Namibians, Tulinam, an LGBT faith-based group, and Wings to Transcend Namibia, a transgender group.[3]

HistoryEdit

Homosexuality and same-sex relations have been documented among various modern-day Namibian groups. In the 18th century, the Khoikhoi people recognised the terms koetsire which refers to a man who is sexually receptive to another man, and soregus, which refers to same-sex masturbation usually among friends. Anal intercourse and sexual relations between women also occurred, though more rarely.[4]

In the 1920s, German anthropologist Kurt Falk reported homosexuality and same-sex marriage ceremonies among the Ovambo, Nama, Herero and Himba peoples. Ovambo men taking the passive role in sex with other men are called kimbanda or eshengi. Among the Herero, erotic friendships (known as oupanga) between two people regardless of sex were common, and typically included anal intercourse (okutunduka vanena). In the 1970s, Portuguese ethnographer Carlos Estermann observed an Ovambo tradition where men known as esenge would dress like women, do women's work and marry other men. Ovambo society believed they were possessed by female spirits.[4][5]

Legality of same-sex sexual activityEdit

 
LGBT flag map of Namibia

In Namibia, there is no codified sodomy provision, but it remains a crime in the country under the Roman-Dutch common law in force.[6] Sodomy has been defined as "unlawful and intentional sexual relations per anum between two human males." This therefore excludes sexual relations per anum by heterosexual couples or lesbians.[7]

Section 299 of the Criminal Procedure Act of 2004 (Afrikaans: Strafproseswet van 2004) makes reference to evidentiary issues on a charge of sodomy or attempted sodomy. Schedule 1 of the Act groups sodomy together with a list of other crimes for which police are authorised to make an arrest without a warrant or to use of deadly force in the course of that arrest, among other aspects (Sections 38, 42, 44, 63 and 112).[8] Public displays of affection between two men can be considered "immoral" behaviour, which is punishable under the Combating of Immoral Practices Act of 1980 (Afrikaans: Wet op die Bekamping van Onsedelike Praktyke, 1980).[6][9]

In August 2016, the United Nations Human Rights Committee released a report in Windhoek, Namibia's capital city, calling on the country to abolish its sodomy ban.[10] Reacting to the committee's call, John Walters, the Ombudsman of Namibia whose office is mandated to promote and protect human rights, said that people should be free to live their lives as they see fit. Walters said:[11][12]

I think the old sodomy law has served its purpose. How many prosecutions have there been? I believe none over the past 20 years. If we don’t prosecute people, why do we have the act?

The Government of Namibia informed the United Nations that it has currently no intentions to repeal the sodomy law.[13] Several lawmakers expressed different opinions, however, National Council Chairperson Margaret Mensah-Williams said, "irrespective of how uncomfortable it is, it is time that we should talk about the LGBTI community. They are part of our communities."[14] Yvonne Dausab, chairperson of the Law Reform and Development Commission, said that the Constitution of Namibia lacks "sufficient language to describe and protect rights pertaining to the LGBTI plus community".[13] At a roundtable hosted in 2019 by the ombudsman to address equal protection for Namibia's LGBT community, several lawmakers called for these issues to be tackled urgently.[13]

In June 2019, following the repeal of Botswana's sodomy law by its High Court, First Lady Monica Geingos called for the repeal of Namibia's sodomy law, saying that the "sodomy law's days are numbered" and "Namibia will be next".[15]

Recognition of same-sex relationshipsEdit

In 2001, a Namibian woman and her German partner, Elisabeth Frank, sued to have their relationship recognised so that Frank could reside in Namibia. The Immigration Board granted the residence permit, and the State appealed to the Supreme Court. While the court ruled that Frank should be given a permanent residence permit, which she received a year later, it did not rule in favour of same-sex relationships.[16][17]

The Ombudsman of Namibia spoke in August 2016 on the matter of same-sex marriage and said the following:[11]

If people of the same sex would like to get married, it is their choice, whether the country, the community, churches and government acknowledge that [is something else].

In December 2017, a case was brought to the High Court by Namibian citizen Johann Potgieter who married his South African husband Daniel Digashu in South Africa in 2015. The couple filed a lawsuit against the Namibian Government to have their 2015 South African marriage recognised in Namibia.[18][17] In January 2018, Digashu won a court petition to allow him to enter Namibia as the High Court continues to review their case. The ombudsman said that he is not opposed to the recognition of their marriage in Namibia.[14]

In 2018, a second case was filed by Namibian-born lawyer Anita Grobler and her South African spouse, Susan Jacobs, who have been together in a relationship for over 25 years, in an attempt to have their 2009 South African marriage recognized in Namibia and to obtain residence rights for Jacobs.[14] A third case was filed in 2018 by Anette Seiler-Lilles and her German wife Anita Seiler-Lilles, who have been together since 1998. The couple seeks to have their 2017 German marriage recognized in Namibia.[13]

In June 2019, Judge President Petrus Damaseb directed that a full bench of three judges should be designated to hear all pending cases.[14] Ombudsman John Walters argues that marriage should be opened to couples irrespective of gender. Walters is one of eight respondents cited in the case; the other seven respondents include the Minister of Home Affairs and Immigration and the Attorney General who have both filed notices against same-sex marriage.[13]

Discrimination protectionsEdit

Discrimination on the basis of sexual orientation and gender identity is not outlawed in Namibia. The Namibian Constitution includes the category "social status", which could be interpreted as covering LGBT people.[19]

Namibia is one of the rare cases in which a provision protecting people from discrimination based on sexual orientation was repealed by a legislative body. As early as 1992, local activists successfully lobbied to include "sexual orientation" among the prohibited grounds of discrimination in the Labour Act 1992. In 2004, a new labour law was discussed in Parliament and the inclusion of the term was a topic of heated debates, resulting in the exclusion of the term from the final text. However, this law never came into force.[6] The Labour Act 2007 currently in force does not include sexual orientation among the prohibited grounds of discrimination.[20]

In August 2016, the United Nations Human Rights Committee called on the Government of Namibia to adopt legislation explicitly prohibiting discrimination based on sexual orientation, including in the Labour Act (Act No. 11 of 2007).[10] Following the committee's call, the Ombudsman of Namibia, argued that a measure prohibiting discrimination on the ground of sexual orientation needs to be in the Constitution.[11]

Hate crime lawsEdit

LGBT people in Namibia face discrimination, harassment and violence. Additionally, similarly to neighbouring South Africa, lesbians are occasionally the victims of so-called corrective rape, where male rapists purport to raping the lesbian victim with the intent of 'curing' her of her sexual orientation.[10]

In August 2016, the United Nations Human Rights Committee called on Namibia to adopt hate crime legislation punishing homophobic and transphobic violence, and vigorously enforce it.[10]

Gender identity and expressionEdit

The Births, Marriages and Deaths Registration Act 81 of 1963 (Afrikaans: Wet op die Registrasie van Geboortes, Huwelike en Sterfgevalle, 1963) states that: "The Secretary may on the recommendation of the Secretary of Health, alter in the birth register of any person who has undergone a change of sex, the description of the sex of such person and may for this purpose call for such medical reports and institute such investigations as he may deem necessary."[21]

It was reported in 2015 that applications for change of sex are done on a case-by-case basis and are not problematic, as long as a person can provide medical reports of their sex change, which includes undergoing sex reassignment surgery. Once the application is granted, a transgender person can apply for a new identity document and passport.[21]

In addition, a transgender person who has not had a "change of sex" could possibly use the Identification Act 2 of 1996. The act states that "if an identity document does not reflect correctly the particulars of the person to whom it was issued, or contains a photograph which is no longer a recognizable image of that person" the Minister shall cancel it and replace it with an improved identity document.[21]

Blood donationEdit

Individuals seeking to donate blood in Namibia must not have had more than one sexual partner within the past six months, irrespective of sexual orientation and gender. People "suspect of having contracted a sexually-transmitted disease such as HIV or syphilis" are not allowed to donate.[22]

Public opinionEdit

A 2016 Afrobarometer opinion poll found that 55% of Namibians would welcome, or would not be bothered by having, a homosexual neighbour. Namibia was one of only four countries in Africa polled with a majority in favour,[23] the others being South Africa, Cape Verde and Mozambique.

Living conditionsEdit

In 2005, the Deputy Minister of Home Affairs and Immigration, Teopolina Mushelenga, claimed that lesbians and gay men betrayed the fight for Namibian freedom, were responsible for the HIV/AIDS pandemic, and were an insult to African culture.[24] In 2001, President Sam Nujoma warned about forthcoming purges against gays and lesbians in Namibia, saying "the police must arrest, imprison and deport homosexuals and lesbians found in Namibia."[25] Home Affairs Minister Jerry Ekandjo in 2000 urged 700 newly graduated police officers to "eliminate" gays and lesbians "from the face of Namibia".[26]

Mr Gay Namibia 2011, Wendelinus Hamutenya, was the victim of a homophobic assault in December 2011 in Windhoek.[27]

In November 2012, Ricardo Amunjera was crowned Mr Gay Namibia. The pageant took place at a theatre-restaurant in the capital city, Windhoek. Amunjera went on to later marry his Motswana life partner Marc Omphemetse Themba in South Africa in 2013.[28]

In December 2013, McHenry Venaani, the president of the Popular Democratic Movement (formerly DTA), spoke out in favor of LGBT rights and said that people should be allowed to live their private lives without interference.[29]

There are reports of a widespread use of religious gay conversion therapy practices in Namibia.[30]

ActivismEdit

Namibia's first pride march took place in Windhoek in December 2013. It was attended by about 100 people.[31] The city of Swakopmund held its first pride parade in June 2016.[32] They both have continued annually since then and have not faced any impediments by the Namibian Government. In June 2017, around 200 people marched in a pride parade in Windhoek,[33] and in December 2018, hundreds of people marched in parades in the cities of Windhoek and Swakopmund.[34][35]

In 2017, the Diversity Alliance of Namibia (DAN) was formed. The DAN is a collective of organisations representing sexual and gender minorities in Namibia. It includes the following organisations: Rights not Rescue Trust (RnRT), Tulinam, Young Feminist Movement of Namibia (Y-FEM), OutRight Namibia (ORN), Wings to Transcend Namibia (WTTN), Transgender Intersex and Androgynous Movement of Namibia (TIAMON), Rights for all Movement (RAM), Rural Dialogue Namibia, MPower Community Trust, and Voice of Hope Trust (VHT). The Alliance has elected Tulinam and RnRT as chair and vice-chair, respectively, and ORN as a secretariat and coordinating mechanism.[36]

On 17 May 2018, the International Day Against Homophobia, Transphobia and Biphobia, the Outreach Health drop-in-centre, which is Namibia's first LGBT health centre, was launched by OutRight Namibia in Windhoek.[37][38][39]

In November 2017, the first Namibian Lesbian Festival was held in Windhoek. More than sixty young lesbians from eight regions came together for a week of public performances and creative expression, with poetry, stories, music, drama and dance.[40] The second edition of the festival occurred in November 2018.[41][42]

A few denominations, including the Evangelical Lutheran Church in the Republic of Namibia, tolerate LGBT Christians. Madelene Isaacks, a lesbian Christian, started the faith-based organisation Tulinam to help create safe spaces for sexual minorities in Namibian churches.[30]

Summary tableEdit

Same-sex sexual activity legal   (For males; not enforced; legalization proposed)/  (For females)
Equal age of consent   (For males; not enforced; legalization proposed)/  (For females)
Anti-discrimination laws in employment only  
Anti-discrimination laws in the provision of goods and services  
Anti-discrimination laws in all other areas (Incl. indirect discrimination, hate speech)  
Same-sex marriages   (Court case pending)
Recognition of same-sex couples  
Stepchild adoption by same-sex couples  
Joint adoption by same-sex couples  
LGBT people allowed to serve openly in the military  
Right to change legal gender   (Sex reassignment surgery required)
Access to IVF for lesbians  
Commercial surrogacy for gay male couples  
MSMs allowed to donate blood  

See alsoEdit

ReferencesEdit

  1. ^ O'Donnell, Belinda (3 March 2016). "HERE ARE THE MOST AND LEAST TOLERANT COUNTRIES IN AFRICA". UN Dispatch.
  2. ^ "OutRight Namibia". Archived from the original on 3 September 2017. Retrieved 13 December 2018.
  3. ^ "Namibia's Compliance with the U.N. Convention Against Torture: LGBTI Rights" (PDF). The Advocates for Human Rights. 2016.
  4. ^ a b "Boy-Wives and Female Husbands". www.willsworld.org.
  5. ^ DAS WILHELM, Amara, Tritiya-Prakriti: People of the Third Sex. Xlibris Corporation, 21 May 2004
  6. ^ a b c Mendos, Lucas Ramón (2019). State-Sponsored Homophobia 2019. Geneva: ILGA. p. 355.
  7. ^ Office of the Ombudsman of Namibia (2013). Baseline Study Report on Human Rights in Namibia (PDF). p. 97.
  8. ^ Criminal Procedure Act 25 of 2004.
  9. ^ Combating of Immoral Practices Act 21 of 1980 (as amended by Married Persons Equality Act 1 of 1996 (GG 1316) brought into force on 15 July 1996 by GN 154/1996 (GG 1340) Combating of Immoral Practices Amendment Act 7 of 2000 (GG 2325) brought into force on 15 June 2000 by GN 141/2000 (GG 2348)).
  10. ^ a b c d Reporter, New Era (18 August 2016). "UN wants homosexuality legalised in Namibia". New Era Live.
  11. ^ a b c "Namibia's ombudsman calls for same-sex marriage amidst UN report furore". MambaOnline - Gay South Africa online. 23 August 2016.
  12. ^ Let gays be – Walters The Namibian
  13. ^ a b c d e "Same-sex marriages before full bench". Namibian Sun. 15 July 2019.
  14. ^ a b c d "Walters backs LGBT marriage". Namibian Sun. 10 July 2019.
  15. ^ "Sodomy law's days numbered - Geingos". Namibia Sun. 14 June 2019.
  16. ^ Strydom, Johan; Teek, Pio; O'Linn, Bryan (26 June 2019). "Appeal Judgment: Chairperson of the Immigration Selection Board v Frank and Another". Supreme Court of Namibia.
  17. ^ a b Igual, Roberto (15 December 2017). "Namibia: Gay couple sue govt for same-sex marriage and family rights". Mambaonline.
  18. ^ Namibia: Govt Sued Over Gay Marriage Archived 16 February 2018 at the Wayback Machine AllAfrica.com, 14 December 2017
  19. ^ The Constitution of The Republic of Namibia
  20. ^ Dentlinger, Lindsay (7 May 2004). "Justice Minister scorns homosexuality as 'criminal'". Namibian.
  21. ^ a b c "Transgender Rights in Namibia" (PDF).
  22. ^ "WHEN NOT TO GIVE BLOOD". www.bts.com.na.
  23. ^ "Africa's most and least homophobic countries". 9 March 2016.
  24. ^ "Namibia: African NGOs Respond to Statement by Namibian Deputy Minister on Gays and Lesbians "Betraying the fight for freedom"". Global LGBT Human Rights. 13 September 2005.
  25. ^ "nam008 Namibian president announces purges against gays". www.afrol.com.
  26. ^ "BBC News | AFRICA | Namibia gay rights row". news.bbc.co.uk.
  27. ^ "Mr Gay Namibia Assaulted". www.advocate.com. 12 December 2011.
  28. ^ MIYANICWE (17 April 2013). "Everyday is a honeymoon for Mr Gay Namibia and his life partne".
  29. ^ Miyanicwe, Clemans (16 December 2013). "Namibian political leader stands up for gay rights". Gay Star News.
  30. ^ a b "Namibian Christians vest hopes in 'pray the gay away' tactic". Religion News Service. Windhoek. 16 December 2016.
  31. ^ NAMIBIA CELEBRATES PRIDE Mambaonline, 9 December 2013
  32. ^ Namibia’s Swakopmund celebrates its first Pride march Mambaonline, 7 June 2016
  33. ^ Morgan, Michaela (31 July 2017). "Namibia just held ita first official Pride parade". SBS.
  34. ^ "Namibia celebrates LGBTI+ Pride in Windhoek and Swakopmund". Equal Eyes. 13 December 2018.
  35. ^ Igual, Roberto (12 December 2018). "Namibia celebrates LGBTI+ Pride in Windhoek and Swakopmund (Pictures)". Mambaonline.
  36. ^ "Namibia: The Pursuit of Happiness". Equal Eyes. 21 April 2018.
  37. ^ "Namibia's first LGBT health centre opens in Windhoek". Equal Eyes. 30 May 2018.
  38. ^ "LGBTI Health Centre Opens in Namibia". Gay Nation. 6 June 2018.
  39. ^ Igual, Roberto (28 May 2018). "Namibia's first LGBT health centre opens in Windhoek". Mambaonline.
  40. ^ Rasmeni, Mandisa (9 January 2018). "First Lesbian Festival Held in Windhoek". Namibia Economist.
  41. ^ Rasmeni, Mandisa (8 November 2018). "Lesbians Celebrate Life Through Creativity". Namibia Economist.
  42. ^ Pinehas, Tutaleni (22 November 2017). "First Nam lesbian festival underway". Namibian.

External linksEdit