Laws Banning Same-Sex Intimacy Overturned By Namibian High Court

21 June 

Laws that criminalised consensual same-sex intimacy in Namibia were struck down today 21 June by the High Court in a historic move that will align the country with its immediate neighbours and ensure better protection for LGBT Namibians, says the Human Dignity Trust (HDT).

In their judgment, the three-judge bench of the High Court of Namibia ruled that the laws amounted to unfair discrimination and were therefore unconstitutional and invalid. The court held that “the enforcement of the private moral views of a section of the community (even if they form the majority of that community), which are based to a large extent on nothing more than prejudice” is not justifiable, and that criminalising gay men “poses a greater threat to the fabric of society as a whole than tolerance.”

Same-sex intimacy between men was initially criminalised in Namibia under colonial rule. Namibia maintained the ‘sodomy’ and ‘unnatural sexual offences’ laws when it gained independence from South Africa in 1990, despite the laws being held unconstitutional by the South African courts soon thereafter. Although only men were criminalised, the whole LGBT community was affected by the stigma and discrimination these laws enable.

The pioneering legal case, brought by a prominent and respected LGBT activist, Friedel Dausab, was filed in June 2022 and heard by the High Court of Namibia in October 2023. The case challenged the compatibility of the criminal laws with fundamental rights guaranteed in the Constitution of Namibia

‘I challenged these laws as a committed activist because I was personally and acutely aware that criminalisation was a clear obstacle to my living a full, open, honest life. I can also attest that the sodomy offences hindered the prevention of HIV infections and access to life-saving treatment, and made gay men like me easy targets for abuse,’ says Friedel Dausab.

‘But most of all, because of this decision, I no longer feel like a criminal on the run in my own country simply because of who I am. Just like most ordinary Namibians, I’ve always wanted the chance to find love and to know that I belong. Today, I feel closer to that goal,’ he added.

Téa Braun, HDT’s Chief Executive, said, ‘I am delighted that Friedel has succeeded in his case against the government of Namibia and proud that our team at the Trust has played a part in his journey to justice.’

‘Huge credit goes to him, the legal team on the ground and the activist community in Namibia who have supported him. These combined and concerted efforts not only mean that LGBT Namibians can look to a brighter future where their rights to love freely are recognised, but also bring much needed and renewed energy to other decriminalisation efforts across Africa,’ she added.

It is unclear if anyone engaged in consensual same-sex intimacy had been convicted under the criminalising offences since Namibian independence, although there had been arrests. Nevertheless, the mere existence of these offences was a human rights violation, says HDT.

Following the passing of an anti-LGBT bill by the Namibian parliament in July 2023, there has been an increase in hate crimes targeting the LGBT community, culminating in at least six brutal murders. According to Namibian organisation Positive Vibes Trust, the intensification of homophobia has increased following the bill and is linked to a significant rise in violence and harassment against LGBT people.

Namibia is now aligned with the majority of countries in the Southern African Development Community (SADC), where more than half of member states have decriminalised same-sex sexual activity, such as Angola, Botswana, Lesotho, Mauritius, Mozambique, Seychelles and South Africa.

Notes:

• Read the judgment from the High Court of Namibia: https://www.humandignitytrust.org/resources/dausab-v-the-minister-of-justice/
• Friedel Dausab was represented by Gilbert Marcus SC, Natasha Bassingthwaighte, Ramon Maasdorp, Michaela Kritzinger and AngulaCo Inc. Technical assistance was provided by the Human Dignity Trust.
• Visit the Human Dignity Trust’sinteractive mapto see which countries across the world continue to criminalise LGBT people: https://www.humandignitytrust.org/lgbt-the-law/map-of-criminalisation/
• TheHuman Dignity Trustworks with LGBT activists around the world to defend human rights in countries where private, consensual, same-sex sexual activity is criminalised. We provide free technical legal assistance to local organisations, litigants and lawyers that are challenging these laws.

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