Linea Dishena
Sylvia Hashondali
The recent judgement to decriminalise gay sex has provided a brief reprieve for Namibia’s queer community, still reeling from political and societal attempts to criminalise their lives and a recent spate of murders of members of that community.
“You made this queer boy from Walvis Bay see himself in his own country… I don’t have to leave; I can be here and I can be queer.”
A teary and emotional Rodelio Lewis was sharing his gratitude to lesbian, gay, bisexual, transgender, queer, intersex, and asexual (LGBTQIA+) activist Friedel Dausab for challenging the sodomy common law crime, which was declared unconstitutional and invalid in a landmark judgement by the Windhoek High Court on Friday.
Rainbow flags and posters stating, “Get the law out of my love life”, “Peace, Love, Unity” and “Justice Now”, were held high with pride, joy and tears at the Windhoek High Court following the joint decision by Judge Nate Ndauendapo, Judge Claudia Claasen and Judge Shafimana Ueitele.
“This means freedom. Freedom for people to express themselves, and also not fear that who they love and choose to love is illegal or unconstitutional like it was before,” said one of the members of the LGBTQIA+ community, who joined the celebrations at Windhoek’s Zoo Park.
The case was about the inclusion of the crime of sodomy in the Criminal Procedure Act, 1977 (Act 51 of 1977), which defines sodomy as unlawful intentional sexual relations between two human males, while unnatural sexual offences cover mutual masturbation, sexual gratification obtained by friction between the legs of another person, and other unspecified sexual activity between men.
The case brought by Dausab, with the support of British-based non-governmental organisation Human Dignity Trust in 2022, sought constitutional redress under Article 25 - Enforcement of Fundamental Rights and Freedoms, contending that these laws, unfairly and irrationally, discriminate against him and other gay men on the basis of sex and sexual orientation. It thus infringes on his constitutional right to equality, dignity, privacy, freedom of expression and freedom of association, he contended.
Speaking shortly after the judgement at a media conference, Dausab expressed that the sodomy law has been a stumbling block for LGBTQIA+ persons to find happiness.
“As a community, we can live peacefully side by side, our love is not a crime anymore… All I can do is call out the discriminatory and violent rage in Parliament last year and request our leaders to be more careful with the words they use because they are the leaders to the rest of the society. I believe that if we stand on our Constitution as the basic law of the country and supreme law of the country, every Namibian should respect the rights of other Namibians,” he said.
Dausab, who is 50 years old, also thanked his mother in the audience for supporting him, saying he took on the cause to fight for LGBTQIA+ rights at the age of 25, shortly after being diagnosed with HIV and became an HIV activist.
Dausab’s mother, Magdalena Dausas, shared that every Namibian deserves equal rights, stating that as a mother, she is happy that her child now has freedom to move around and speak freely. “When someone is grounded, they are prevented from expressing themselves, resulting in them not being recognised as human beings,” Dausas said.
Trans rights activist Deyonce Naris said the court’s decision is an indication that the justice system is working by protecting all persons’ liberties and dignity.
“I think it is important for the community to understand what this means… that we were never illegal in this country and that the one crime that was held against us …sexual activity between two consenting adults, should not have been anybody’s business and has been declared unconstitutional. So, this means we can live our lives and be supported and be loved. Despite what political rhetoric might come out, we are still part of your household,” she said.
Meanwhile, Positive Vibes executive director Flavian Rhode stated that as much as the judgement has a direct impact on LGBTQIA+ persons, it equally has a direct impact on spreading the gospel of acceptance and inclusivity in the country.
“This is a momentous occasion for us to stand along with so many other countries that recognise LGBTQIA+... I do think we can stand shoulder to shoulder as today our court systems recognise us amongst our peers. Now the work really lies in changing hearts and minds. But right now we can stand amongst our peers because of what happened today,” said an emotional Rhode.
The respondents included the Minister of Justice, Minister of Home Affairs, Safety and Security, Minister of Defence and Veterans Affairs, the Prosecutor General and the Attorney General.
Namibia inherited the laws when it gained independence from South Africa in 1990. Though same-sex acts between men were initially criminalised under colonial rule, High Court Judges Ndauendapo, Claasen and Ueitele jointly on 21 June 2024 stated: “The inclusion of the crime of sodomy in Schedule 1 of the Criminal Procedure Act 51 of 1977 is declared unconstitutional and invalid.” -Nampa