(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
Namibia inherited the Roman-Dutch common law at the time of independence, which criminalised anal sex between men. Anal intercourse between males is all that is left of the once wider definition of ‘sodomy’, but ‘unnatural sexual offences’ covers mutual masturbation, ‘sexual gratification obtained by friction between the legs of another person’ and other unspecified sexual activity between men. None are illegal if between a man and a woman, or between two women. Additionally, the common law crimes of sodomy and ‘unnatural sexual offences’ are now only relevant to sexual acts between consenting men’.
Sexual orientation is not expressly enumerated in the Namibian Constitution as prohibited grounds for discrimination. The Supreme Court also said in Müller that the list of prohibited grounds of discrimination is not open-ended.
Article 10 of the Namibian Constitution provides:
(1) All persons shall be equal before the law.
(2) No persons may be discriminated against on the grounds of sex, race, colour, ethnic origin, religion, creed or social or economic status.
The Pan Africa International Gay, Bisexual, Transgender and Intersex Association, ARC International and International Gay, Bisexual, Transgender and Intersex Association (JS1) have jointly urged Namibia to repeal discriminatory laws that criminalise sexual activity between consenting adults of the same sex in accordance with their international human rights obligations.
Despite the lack of general constitutional protections for LGBTI people, sexual-orientation discrimination is prohibited in the employment context by the Namibian Labour Act of 1992.
In some other areas of Namibian law, only same-sex couples are protected. For example, the Combating of Domestic Violence Act 2003 is only relevant to those in opposite sex relationships.
Despite reports of corrective rape, the Combating of Rape Act covers a wide range of intimate sexual contact where ‘coercive circumstances’ occur. This legislation should protect those who are threatened personally or indirectly, or controlled with physical force.
Müller and Engelhard v Namibia, communication 919/2000, CCPR/C/74/D/919/2000 (26 March 2002). The citation of the Supreme Court judgment is Michael Andreas Müller v The President of the Republic of Namibia and The Minister of Home Affairs, case No SA 2/98 (Sup Ct) (Müller). Although Müller was not a case on sexual orientation, it was a case that tackled the issue of equality and its construction. This judgment makes clear that the list of prohibited grounds of discrimination under Namibian law is given much more weight than ground not specifically enumerated, and that difference in treatment based on reasonable and objective criteria not explicitly covered does not necessarily amount to prohibited discrimination.
Frank v Chairperson of the Immigration Selection Board: Case revolving around a lesbian couple with a Namibian woman and German citizen. The German woman applied to the Immigration Selection Board for a permanent residence permit in 1995. The Board denied Frank’s application holding that the women’s ‘long term relationship’ was not one recognised in law. On appeal, the High Court ruled in favour of the women, looking to the common law concept of a ‘universal partnership’ where individuals put in common their current and future property. It was held that due to the equality provisions in the Constitution this could also apply to the long term relationship between the women.
In the Supreme Court it was held that the provisions of the Namibian Constitution and the Immigration Act did not discriminate against Frank and her partner, arguing that the relationship between the two women did not factor into the decision to reject the German citizen’s work permit.
PUBLIC ATTITUDES AND/OR STATE’S CAPACITY TO PROTECT
There are reports of discrimination in Namibia, ranging from social exclusion, to violence, and ‘correctional rape’. In 2004 the Human Rights Committee of the United Nations noted the absence of anti-discrimination measures for sexual minorities. The ILO Committee of Experts in 2010 regretted that the New Labour Act 2007 did not prohibit discrimination on the grounds of sexual orientation.
Ms Theopolina Mushelenga, Deputy Minister of Home Affairs and Immigration in 2005 stated that lesbian and gay men ‘betrayed the fight for Namibian freedom [and] are responsible for the HIV/AIDS pandemic’.
In 2011 Mr Gay Namibia was the victim of a violent attack in Windhoek, Namibia, the day after he had won the competition. Motives for the attack remain unclear.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
African Men for Sexual Health and Rights (AMSHeR)
Advocating the equal rights of sexual minorities in all spheres of Namibian society.
‘Aspires to reduce the HIV incidence amongst LGBTI community, achieve a healthy LGBTI community that is resilient to homophobia and that has a sustainable future’.
Outright Namibia is ‘dedicated to the attainment of the full constitutional equality and equity of sexual diverse people in Namibia’.
COUNTRY OF ORIGIN SPECIALISTS
We do not currently have any specialists on LGBTI issues in Namibia, but welcome suggestions
Researched by: Andrew Kerr