Namibia

Same-sex sexual activity is prohibited under the common law, which criminalises acts of ‘sodomy’ and ‘unnatural sexual offences’. The sentences available under these offences is not clear. Only men are criminalised.

Namibia inherited these offences under the common law when it gained independence from South Africa in 1990. Although South Africa soon decriminalised same-sex sexual activity, Namibia continues to maintain the common law today.

There is some evidence of the law being enforced, with 115 reported cases resulting in 64 arrests between 2003 and 2019. However, it appears there is seldom, if ever, a prosecution for consensual sodomy, with no records or reports of enforcement in recent years, and the law appears to be largely obsolete in this regard. Nevertheless, the mere existence of these laws is itself a violation of human rights and underpins further acts of discrimination (see further). There have been some reports of discrimination and violence being committed against LGBT people in recent years, including verbal and physical abuse, harassment, ‘corrective rape’, and discrimination in accessing services. This has included violence by the police against members of the LGBT community.

2023 

Friedel Dausab, a gay Namibian man, mentioned below, is challenging the compatibility of the common law offence of sodomy and related offences with his rights under the Constitution of Namibia. The High Court of Namibia heard the case on 31 October 2023 and a decision is expected on 17 May 2024.

In May, the Supreme Court upheld the High Court’s judgment in Digashu v Government of the Republic of Namibia, recognising same-sex unions concluded abroad. However, the Supreme Court stated that homosexuality is a complex issue and same-sex marriage rights more broadly should be dealt with in Parliament, not at the Court.

In July, in reaction to the Supreme Court judgment, the upper house of Parliament swiftly passed a bill prohibiting same-sex marriage, including unions concluded overseas. The bill would criminalise the solemnisation, participation in, promotion, or advertisement of such a marriage by up to six years in prison and a fine. The bill was then passed in the lower house of Parliament and is currently waiting for either the signature or rejection of the President.

2022 

In January, the High Court delivered its ruling in Digashu v Government of the Republic of Namibia relating to two same-sex couples who were lawfully married overseas but whose applications for work and residence permits were refused, and their marriages not recognised. The applicants brought a case to have their civil marriages recognised under the Immigration Control Act, and failing this, for the relevant section to be declared unconstitutional.

The Court noted that same-sex relationships are globally recognised and protected, and that they are worthy of the same rights as other relationships. It also noted that international law is a crucial source for the protection of LGBT rights.

In June, Friedel Dausab, a gay Namibian man, filed a challenge to the common law offence of sodomy and related offences, on the basis that they were incompatible with his rights as protected by the Constitution of Namibia. Dausab, an expert in HIV prevention and treatment and an experienced LGBT rights activist, brought the case with the support of the Human Dignity Trust.

2021

In 2021 it was reported that Minister of Justice, Yvonne Dausab, stated that government would consider two reports by the Law Reform and Development Commission calling for the abolishment of 34 obsolete laws, including the law criminalising sex between consenting men.

2020

In November, the Namibian Law Reform and Development Commission published a report which recommended the repeal of the law criminalising sodomy, noting that the existence and enforcement of this provision violates the constitutional rights of privacy and dignity. The report noted that it was “unjustifiable to maintain offences which intrude severely on constitutional rights”.

2018

In January, Johann Potgie­ter and Daniel Digashu won their court petition to allow Digashu to enter Namibia to be with his husband and son.

Another case of a couple seeking to have their marriage recognised was filed by Namibian citizen Anette Seiler and her German wife Anita Seiler-Lilles, who were facing similar legal barriers to Johann Potgieter and Daniel Digashu. Their cases were later joined.

2017

Married couple Johann Potgieter, who is a Namibian citizen, and Daniel Digashu, who is South African, requested a court indictment to stop the Ministry of Home Affairs and Immigration from considering Digashu and the couple’s son as prohibited immigrants under the Immigration Control Act. In his statement, Digashu claims that the Ministry of Home Affairs and Immigration are discriminating against him and his husband based on their sexual orientation and have asked the court to declare that the government recognise their marriage and the process of joint guardianship of their son (see decision above).

2015

The National Human Rights Action Plan 2015-2019 highlights LGBT individuals as a vulnerable group and notes the right of LGBT people not to be discriminated against. Key concerns included widespread social exclusion and rejection, the continued criminalisation of sodomy, the omission of sexual orientation as a prohibited ground for discrimination in the workplace, the continued criminalisation of sex work, continued insensitivity by the Namibian police of the plight of LGBT people, and the lack of extensive research on LGBT’s human rights situation.

2014

In March, in response to a question on whether he thought Namibia would introduce any further anti-gay legislation (as seen in Nigeria and Uganda), then Namibian Prime Minister Hage Geinbob answered in the negative, adding that: “In Namibia, we respect human rights.”

2010

The ILO Committee of Experts expressed regret that Namibia’s Labour Act of 2007 did not prohibit discrimination on the ground of sexual orientation, which had been covered under the preceding 1992 Act.

2022

The US Department of State report for Namibia suggests that the criminalisation of sodomy, inherited at independence, is not enforced in the country.

2021

A report by the Namibian Law Reform and Development Commission found that, although there have been recorded cases of sodomy for non-consensual sexual activity, there have been no reported prosecutions for sodomy involving consensual sexual activity since independence in 1990.

2016

In August, in questioning the need to maintain the anti-sodomy law, the Namibian Ombudsman stated that there had been no prosecutions in the last 20 years.

2022

The US Department of State report found widespread discrimination in access to judicial, health and social services continued. Assaults on LGBT people were underreported due to fear of official discrimination. In January, an LGBT rape survivor alleged discrimination by police and healthcare providers. According to NGOs and LGBT community members, there were instances of “corrective” rape targeted LGBT persons.

LGBT persons and organisations were not restricted from holding events, including a week-long Pride festival.

2021

In November, the Windhoek High Court found in favour of a Namibian trans woman who had been unlawfully assaulted by a police officer. In a case challenging the behaviours of the police, the Court concluded that the woman was unlawfully arrested and assaulted by a police officer in Windhoek in the early morning hours of 6 July 2017, awarding N$58,742 in damages for pain and suffering.

2020

The US Department of State report found that LGBT people faced harassment when accessing public services, and there were isolated reports of transgender people being harassed or assaulted. LGBT groups held annual pride parades which were recognised as constitutionally protected peaceful assembly.

2017

The US Department of State report found that there was some evidence of government attitudes relaxing in recent years. For instance, in July, authorities allowed an LGBT parade in downtown Windhoek. It further stated that other than some isolated shouting of insults and head shaking from passing motorists, no harassment or violence took place.

In July, a Namibian trans woman was unlawfully arrested and assaulted by the police. In the early hours of the morning a police constable forced her into a vehicle, assaulted her by punching her, used degrading words like “moffie” (“faggot”) against her and in front of Windhoek Central Police Station further assaulted her by kicking her. The incident was captured on video and was later subject court proceedings against the police (see above).

2016

The Committee Against Torture, in its review of Namibia, received reports which detailed the harassment and ill-treatment of LGBT individuals by police officers and other state actors. The reports also stated that continued criminalisation of consensual same-sex conduct leads to stigmatisation, violence, harassment, blackmail and discrimination by both state and non-state actors.

2014

The US Department of State report on Namibia reported that during 2014, many cases of human rights violations against LGBT persons went unrecorded, including the use of ‘corrective rape’ against lesbians, families disowning LGBT children, and the beating of LGBT persons.

In September, a man sexually assaulted a lesbian in Windhoek because he wanted to “cure” her of her lesbianism. When she sought medical help at a state hospital, the receptionist reportedly told her to return later and publicly announced that she had been raped.

2021

In December, the LGBT community held its biggest ever pride parade, which included appeals to decriminalise sodomy.