Over the past few years, the fight for equality has been an arduous journey, but Namibia celebrated International Day Against Homophobia Biphobia and Transphobia (IDAHOBIT) with a massive shift in the legal landscape. In a landmark judgment handed down on Tuesday 16 May, the Supreme Court ruled that the marriages of two same-sex couples who married in South Africa and Germany, respectively, must be recognized in Namibia, and that the non-Namibian partners in each marriage are considered the spouses of their Namibian partners under the country’s immigration law.

This win symbolizes the direction the country is heading, towards equal human rights for the lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI+) community. The court ruling also reflects this year’s IDAHOBIT theme of “United in Diversity” for Namibian society. 

Against this backdrop, Namibian LGBTQI+ activists taking part in UNDP’s #WeBelongAfrica: Inclusive Governance Initiative reflect on successes and continued challenges to create a free society with inclusive laws and policies for all citizens.  

Obsolete Laws from the Colonial Era

While homosexuality itself is not illegal in Namibia, the common law criminalizes sodomy, which leads to harassment and marginalization of the LGBTQI+ community, in particular gay men and transgender women. 

Similarly, the Combating of Immoral Practices Act 21 of 1980 prohibits “immoral acts” and public “indecent dress or manner”. This allows for the punishment of public displays of affection between men and harassment of transgender people.

These laws are deeply rooted in Roman-Dutch common law, and while many colonial era and apartheid laws have been repealed, such laws remain on the books, despite not serving any purpose in an independent Namibia.

Thirty-three years ago, founding president Sam Nujoma fortified the Namibian dream of protection, equality and growth after a decades-long war against the segregation, racism and inhumanity of the apartheid system.

A new and free Republic of Namibia was born on 21 March 1990 with a Constitution that promises Namibians dignity and humanity, and that offers a warm blanket of protection, comfort, hope and dreams to the country's free citizens. However, many feel they are failed by this promise.

Des Haman is a youth and LGBTQI+ activist who heads the organization Khaibasen Community Project which operates in the southern town of Keetmanshoop. Haman does community work to improve services to young girls and the LGBTQI+ community.

“I wish to see an inclusive community and society where everybody is free – free of judgment, free of discrimination, free of hatred and where everybody can access services equally,” says Des.

The veteran activist has been doing community work for almost two decades and says the journey to freedom has been traumatizing for the LGBTQI+ and sex worker communities when it comes to economic development and access to employment opportunities. 

Matriarch of the LGBTQI+ movement and community freedom fighter, Mama Afrika, says Namibia cannot enjoy freedom while there are still people who are marginalized. “If we say that Namibia is an independent country, then we are talking about freedom. If some people are not free, such as LGBTQI+ and sex workers, it means that Namibia is not free at all.”

Law Reform Successes and Setbacks

In recent years, the plight of the LGBTQI+ community has shifted from creating visibility and safety to harnessing public support for strategic law reform. 

Some significant court cases are: 

• Digashu and Others v GRN and Others; Seiler-Lilles v GRN and Others, in which two same-sex couples launched a consolidated application for the recognition of their marriages. In an historic ruling this week, the Supreme Court found in favour of the respective couples by recognizing their same-sex partners – married outside of Namibia – as their spouses in terms of immigration law and granting them immigration status on this basis.  

Salen Kambinda, director of Positive Vibes Trust Namibia, celebrates this ruling, stating that “the Supreme Court has affirmed the dignity and equality of same-sex couples and upheld the core principles of a free and independent Namibia in all its diversity.”

• Lühl v Minister of Home Affairs and Immigration, in which Namibian Phillip Lühl and his Mexican husband Guillermo Delgado are fighting for the right to family and to have their child born through surrogacy in South Africa registered as a Namibian citizen. 

Although both partners are listed on the South African birth certificate as parents, the Namibian Ministry of Home Affairs has refused to recognize the child’s citizenship. The High Court had overturned this decision in 2021, ordering that the child be granted citizenship by descent. However, on 20 March 2023 the Supreme Court overturned the ruling of the High Court, revoking their son’s citizenship on a technicality, ultimately refusing to make a ruling and set a precedent.

• Dausab v Minister of Justice and Others, a case filed in the High Court of Namibia in June 2022, in which Namibian LGBTQI+ activist Friedel Dausab is challenging the constitutionality of the common law offence of sodomy and related offences.

Dausab is supported by Positive Vibes Trust, a Namibian organization campaigning for equity and justice for all people, including the LGBTQI+ community, and an implementing partner of UNDP’s #WeBelongAfrica: Inclusive Governance Initiative.

“How adults conduct their private lives within loving, consensual relationships and in the intimacy of their own homes, should not be a matter for state interference,” says Flavian Rhode, Executive Director of Positive Vibes Trust.

“The Namibian Constitution – the supreme and homemade law of our land – should be respected and upheld as sacrosanct. Obsolete and outdated colonial laws that breach our Constitution have no place in a diverse, post-independence Namibia, and should be relegated to the history books,” Rhode adds.

Namibian society is one step closer to being free and inclusive, and to fulfilling the promises of the Constitution. As Chief Justice Shivute writes in the Supreme Court judgment:

“Whilst public opinion expressed by the elected representatives in Parliament through legislation can be relevant in manifesting the views and aspirations of the Namibian people, the doctrine of the separation of powers upon which our Constitution is based means that it is ultimately for the court to determine the content and impact of constitutional values in fulfilling its constitutional mandate to protect fundamental rights entrenched in the Constitution”.

The #WeBelongAfrica: Inclusive Governance Initiative supports state entities in Sub-Saharan Africa to become increasingly accountable to, and inclusive of, their entire populations, including sexual and gender minorities. That in turn will contribute to better laws, more responsive public sector services, and social norms that affirm rights and inclusion for all. For more information, visit our website.