Namibia's LGBTQ community is celebrating following a historic win after a high court struck down the country's colonial-era anti-sodomy laws.
On June 21, a panel of three high court judges ruled the laws "amounted to unfair discrimination under Namibia's constitution," reported the BBC.
A crowd outside the courthouse carrying banners that read, "Get the law out of my love life," and "Peace, Love, Unity," was jubilant and overjoyed by the ruling, Reuters reported.
"What threat does a gay man pose to society, and who must be protected against him?" the judgment said, reported the Guardian. "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."
Khanyo Farise, Amnesty International's deputy regional director for East and Southern Africa, called the court's ruling "a victory for love, for equality, and for human rights."
Activists in the country were also pleased.
"It is indeed a new dawn in Namibia and a historic moment for our community," Omar van Reenen, co-founder and campaign manager at Namibia Equal Rights Movement, or NERM, wrote in a June 23 email to the Bay Area Reporter.
231 years a criminal
Gay sex was criminalized when the Dutch colonized Namibia in 1793. Germany, South Africa, and even Namibia upheld the anti-sodomy laws through transitions of power until the southwestern African country gained independence in 1990, according to Dome, a think tank housed at Boston University School of Law.
Sex between women was never criminalized in Namibia, according to the BBC.
According to Voice of America, the Law Reform Commission of Namibia recommended repealing the country's sodomy laws regarding gay sex in 2020.
Etuna Joshua, the chairperson of the Law Reform and Development Commission of the Ministry of Justice, told VOA that there were many old laws on the books before the country's independence, "many of which really did not make sense any longer."
"They are just not compatible with the modern times," he said.
Slow to act
The country's parliament was slow to act on the commission's recommendation. Impatient, Namibian gay activist Friedel Dausab sued the government in 2022. His argument was that the sodomy law was inconsistent with the country's constitution. The lawsuit was backed by the United Kingdom-based Human Dignity Trust, according to Erasing 76 Crimes.
"This victory also brings much-needed and renewed energy to other decriminalization efforts across Africa," Téa Braun, chief executive of the trust, told Reuters.
Responding to the court's ruling, Dausab, who is also an expert in HIV prevention and treatment, told the BBC, "It won't be a crime to love anymore."
"I no longer feel like a criminal on the run in my own country simply because of who I am," he added.
Neela Ghoshal, Outright International's senior director of law, policy, and research, praised the court's decision.
"Here's to throwing off toxic colonial legacies and celebrating true freedom," she wrote in a post on LinkedIn.
Now there are a total of 24 African countries that do not criminalize same-sex relationships. Namibia joins Angola, Benin, Botswana, Burkina Faso, Cabo Verde, Central African Republic, Congo, Ivory Coast, Democratic Republic of the Congo, Djibouti, Equatorial Guinea, Gabon, Guinea-Bissau, Lesotho, Madagascar, Mali, Mauritius, Mozambique, Niger, Rwanda, Sao Tome and Principe, Seychelles, and South Africa in decriminalizing homosexuality.
Homosexuality is criminalized in 30 of Africa's 54 countries, according to the International Lesbian, Gay, Bisexual, Trans, and Intersex Association and Human Dignity Trust.
The fight isn't over
LGBTQ Namibians are celebrating now, but the reality is that the battle over the criminalization of same-sex relationships in the country is not over. Conservatives were also stirred up last year, threatening other rights.
In March 2023, Namibia's Supreme Court overturned a lower court's decision granting citizenship to a gay couple's children born via surrogacy abroad, according to Amnesty International.
However, two months later, the court ordered the government to recognize marriages abroad between same-sex binational couples, if one partner is a Namibian citizen. The gay couple at the center of the case wanted to live in Namibia, but the spouse was denied a foreign residency permit, according to Human Rights Watch.
Namibian members of parliament moved swiftly. Lawmakers passed a bill to restrict same-sex marriage to "between a man and a woman" and criminalize any support, celebration, or promotion of same-sex unions with up to six years in jail and hefty fines the following month. A year later, the bill is sitting unsigned on Namibian President Nangolo Mbumba's desk.
It is unclear if Namibia's government will appeal the court's ruling. The government has 21 days to do so. There is also the possibility that parliament will pass another bill to criminalize gay sex, reported Erasing 76 Crimes.
There is a second law that discriminates against transgender people, according to Amnesty International.
Currently, transgender people can legally change their gender marker on government-issued identification documents and access funding for gender reassignment surgery. But there are serious obstacles, such as traveling outside of the country for surgery, according to the Southern Africa Litigation Centre. Transgender Namibians face discrimination due to sexual orientation and gender identity not being included in the country's anti-discrimination law.
Amnesty International also reported that Namibian activists suggested police have not permitted the same freedom of assembly for LGBTQ groups, while others, such as religious gatherings, have been permitted to assemble.
LGBTQ Namibians reported to the organization heightened attacks against queer and transgender community members from online harassment to frequent targeting and scapegoating by politicians ahead of the November elections.
Amnesty and the United Nations Development Program urged Namibia's government to protect LGBTQ citizens.
"We urge the government of the Republic of Namibia to continue to ensure that all individuals can live free from discrimination and violence," the UNDP wrote in a June 21 news release that also applauded the court ruling.
Got international LGBTQ news tips? Call or send them to Heather Cassell at WhatsApp/Signal: 415-517-7239, or [email protected]
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