Sodomy is criminalised as an offence under Roman-Dutch common law. The offence is uncodified, however case law suggests that it encompasses sexual intercourse between men only.
Types of criminalisation
- Criminalises sex between men
Commonwealth member state
The US Department of State Human Rights Report for Namibia suggests that the criminalisation of sodomy, inherited at independence, is not enforced in the country.
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 2o years.
Statements by Public Figures
In August, the Namibian Ombudsman, John R. Walters, publicly questioned the purpose of the anti-sodomy law and stated that: “I think the old sodomy law has served its purpose. How many prosecutions have there been? I believe none over the past 20 years. If we don’t prosecute people, why do we have the act?” He went on to endorse equal marriage saying: “If people of the same sex would like to get married, it is their choice, whether the country, the community, churches and government acknowledge that [is something else].”
Deputy Finance Minister of Namibia reportedly told staff at an office of the Ministry of Finance in August that: “You are either a man or a woman. Don’t come from outside and tell us this is acceptable. They must keep their gay activities in their countries. We will not entertain any of this gayness.
In April, the Refugee Commissioner of Namibia released a statement saying that Namibia will not allow gay refugees from Uganda into the country. According to the Commissioner: “[Namibian] refugee law does not have a provision granting refugee status for being gay. And we will never do that.
In March, in response to a question on whether he thought Namibia would introduce any further anti-gay legislation (as has been seen in Nigeria and Uganda), then Namibian Prime Minister Hage Geinbob answered in the negative, adding that: “In Namibia, we respect human rights.”
The newly formed Namibian Economic Freedom Fighters political party criticised homosexuality as a threat to the country, compared it to the Ebola virus, and claimed it must be contained.
Former Mr. Gay Namibia and potential parliamentary candidate, Wendelinus Hamutenya, was heavily criticised by both politicians and Namibian gay rights groups for reportedly threatening to release a list of gay politicians.
The leader of the Democratic Turnhalle Alliance political party in Namibia spoke out in defence of gay rights in the country in December. Challenging the proposition that homosexuality is “un-African”, McHenry Venaani stated that: “For many years gays have been part of the society all along. It is scientifically proven all races and cultures have gays”, later adding that it was “natural” to be gay, and that gay people should be protected.
A number of politicians have reportedly spoken out against homosexuality in recent years. An article published in May stated that Former President of Namibia, Sam Nujoma, has called, at various times, for the “rejection and condemnation” of homosexuality; ordering police to “arrest, imprison and deport gays”. Jerry Ekandjo, a cabinet minister, called for the “elimination” of gay people within the country.1
In April, the Secretary of the Youth League of the ruling SWAPO party published a message on Twitter in response to news of a gay couple who had married in South Africa and returned to Namibia: “The so-called first gay marriage in Namibia is an abomination and illegal. It is moral decay at its worst, the police must arrest them.”1
Persecution and Discrimination
The US Department of State Human Rights Report for Namibia stated that although LGBT people faced harassment when trying to access public services, 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.
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.
In a report submitted to the Committee Against Torture, a coalition of LGBT human rights organisations addressed the violence, harassment and ill-treatment of LGBT individuals by police officers and other state actors. The report stated, inter alia, that: “While the State party report does not include information torture and cruel, inhuman or degrading treatment or punishment of LGBTI persons in Namibia, continued criminalization of consensual same-sex conduct leads to stigmatization, violence, harassment, blackmail and discrimination by both State and non-State actors.”
The US Department of State’s Human Rights 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. A large number of LGBT youth were unemployed, did not go to school, abused drugs and alcohol, and remained vulnerable to discrimination.”
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.
In February, an LGBT group Out-right Namibia spoke of an increasingly more tolerant Namibian society: “We must accept that there is increasing tolerance of sexual minorities in Namibia among communities, the media, and in particular by political leaders who have not made homophobic statements in recent years.”
Many cases of persecution and discrimination are not reported, although, again, reports suggest that this situation is improving, particularly through strengthened LGBT relations with the Office of the Ombudsman and the Ministry of Health and Social Services.
In January, Johann Potgieter and Daniel Digashu won their court petition to allow Potgieter to enter Namibia to be with his husband and son.
The Committee Against Torture, in its concluding observations of the review of Namibia recommended that: “The State party should take all necessary measures to protect lesbian, gay, bisexual, transgender and intersex persons from threats and any form of violence, particularly in places of detention, including by separating transgender women from male detainees. The State party should ensure that violence against lesbian, gay, bisexual, transgender and intersex persons is promptly, impartially and thoroughly investigated and the perpetrators prosecuted and punished. The State party should consider decriminalizing sexual acts between consenting adult men.”
At its second UPR cycle, Namibia again rejected recommendations to decriminalise consensual same-sex sexual conduct. The government delegation stated: “[T]he Namibian Government does not persecute members of the Lesbians, Gays, Bisexual, Transgender and Intersexed (LGBTI) community in Namibia. Article 10 of the Namibian Constitution provides for equality and freedom from discrimination… There are no records of cases of harassment or discrimination reported to the Ombudsman or the Namibian police. The reality and the legal history of the Namibian people does not suggest that legalising same sex marriages is important or beneficial to our legal and cultural system. The Government considers the issue of same sex marriages in Namibia as a non-issue. Nevertheless, the Government has no intention to repeal any laws including the common law crime of sodomy.”
In the CESCR’s concluding observations of the review of Namibia at its 57th session, the Committee recommended that the State party: “Expand the grounds for discrimination prohibited in the Constitution to include, among others, marital status, political or other opinion, HIV status, disability, sexual orientation, language, property and birth; Adopt comprehensive anti-discrimination legislation that prohibits both direct and indirect discrimination and provides for the possibility of temporary special measures and remedies for victims; Abrogate all discriminatory legal provisions and, in that regard, decriminalise sexual relations between consenting individuals of the same sex.”
The Human Rights Committee recommended in its concluding observations of the review of Namibia that the state: “Adopt legislation explicitly prohibiting discrimination based on sexual orientation, including in the Labour Act (Act No. 11 of 2007), and adopt hate crime legislation punishing homophobic and transphobic violence and vigorously enforce it; Abolish the common law crime of sodomy and include same-sex relationships in the Combating of Domestic Violence Act (Act No. 4 of 2003) so as to protect same-sex partners; Intensify efforts to combat discrimination against persons with disabilities and against persons who are HIV-positive, and ensure their full integration into all spheres of public life.”
The National Human Rights Action Plan 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 work place, the continued criminalisation of sex work… continued insensitivity by the Namibian police of the plight of LGBTs, and the lack of extensive research on LGBT’s human rights situation.
At its first UPR cycle, Namibia rejected recommendations to decriminalise consensual same-sex sexual conduct. The government delegation stated: “On homosexuality, it was noted that the Constitution outlawed discrimination of any kind. Since independence, no single case of discrimination on the basis of sexual preference or orientation had appeared before the courts. Homosexuals were not prosecuted for practising same-sex activities in private, although this practice was not condoned, and was considered immoral and prohibited in public. Same-sex marriages were not recognized. The Government has no intention of amending current laws.”
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.
1. Open Society Initiative for South Africa
Lister, G., ‘Tough times for LGBTI in Namibia too’, Open Society Initiative for South Africa, 4 May 2013, <http://www.osisa.org/lgbti/blog/tough-times-lgbti-namibia-too> accessed on 19 July 2014