Namibian court declares laws banning gay sex unconstitutional

Namibia’s high court has overturned a law that criminalised gay sex in a victory for LGBTQ+ campaigners after a number of setbacks in the battle for rights in African countries in recent years.

Namibia inherited a law banning “sodomy” and “unnatural offences” when it gained independence from South Africa in 1990. While the ban was rarely enforced, activists said it contributed to discrimination against LGBTQ+ people, including violence by the police.

Friedel Dausab, the Namibian LGBTQ+ activist who brought the case, said: “I feel elated. I’m so happy. This really is a landmark judgment, not just for me, but for our democracy.”

He added: “I’m sitting next to my mum and we’re hoping that this message filters through to all families, so that kids are no longer estranged.”

The judgment, made by three high court judges, said the laws amounted to unfair discrimination under Namibia’s constitution, noting that the same consensual sexual conduct was not criminalised if it was between a man and a woman.

“What threat does a gay man pose to society, and who must be protected against him?” the judgment said. “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.”

It was not clear if Namibia’s government would appeal against the ruling and officials in the attorney general’s office were not available to comment.

UNAids, the UN agency that advocates for global action on HIV and Aids, said the law had fuelled discrimination against LGBTQ+ Namibians in healthcare facilities and that the ruling would encourage more people to come forward for HIV testing and treatment.

“By decriminalising same-sex relationships, Namibia creates a safer environment for LGBTQ+ communities,” said Anne Githuku-Shongwe, UNAids’ regional director for east and southern Africa.

In a pan-African survey of 34 countries conducted between 2019 and 2021, Namibia ranked as the third most tolerant on the question of how people felt about having gay neighbours, with 64% of respondents saying either that they would like it or not care about it.

However, two high-profile court cases have driven 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. Then, in May that year, it recognised same-sex marriages conducted abroad between Namibian citizens and foreign spouses.

In response, the country’s parliament passed a bill that defined marriage as “between persons of the opposite sex”, although it has yet to be signed into law by the president.

Activist groups said that hate crimes subsequently rose. Six LGBTQ+ Namibians have been killed since the bill was passed, according to the campaign group Equal Namibia.

Of the 64 countries globally that criminalise same-sex relations, 31 are in Africa, according to Human Dignity Trust, a UK legal charity that supported Dausab.

The picture on progress in LGBTQ+ rights across Africa is mixed. Gay sex bans were lifted in Namibia’s neighbours Angola and Botswana, in 2021 and 2019 respectively. However, Uganda strengthened its anti-LGBTQ+ legislation last year, imposing the death penalty for “aggravated homosexuality”, which includes gay sex with a disabled person or someone over the age of 75.

In February, Ghana’s parliament passed a bill that imposes a prison sentence of up to five years for the “wilful promotion, sponsorship, or support of LGBTQ+ activities”, although the president has refused to sign it while it is being challenged in court.

SOURCE: theguardian.com