Recent developments on the African continent affecting the human rights of the LGBTQIA+ community must propel us all, within the civil society space and political
and private sectors, to rethink our vision of what a just society might look like if members of a growing minority community are violently repressed from living out their fullest potential due to their (sexual) identity.
From Zambia, where radical feminists protest against intersectional sexual violence results in police censorship because of the assumptions of ‘homosexuality’ promotion, to Namibia where the sodomy law is upheld because the ‘founding fathers of our Constitution’ were intentionally removing Constitutional provisions for the LGBTQIA+ community, and to the parliamentary developments in Uganda passing an unconscionable Anti-Homosexuality Bill (A-HB). Is there any sense of a just future where minority rights are threatened?
The parliament of Uganda has passed a stringent anti-homosexuality bill with a drastic attempt to ‘preserve the traditional family unit’ hailed as a ‘natural structure’ of the Ugandan familial identity. But their anti-homosexuality bill does not veer too far from Namibia’s own ‘Common Law offences of sodomy and unnatural sexual offences’.
In 2014, for example, the penalty for same-sex conduct was life imprisonment in Uganda. Included was that the “attempt to commit homosexuality incurs a penalty of seven years as does aiding and abetting homosexuality”.
In Namibia’s context, sodomy is listed as a “schedule 1 offence, along with serious offences such as treason, murder, rape, assault where a dangerous injury is inflicted, robbery, theft, fraud and forgery,” as per the LRDC report. The minimum sentence for murder in Namibia is 25 years and rape ranges from a minimum of five years to 15 years imprisonment. The A-HB passed on 21 March 2023, (the same day as Namibia’s Independence Day), reifies its discriminatory stance as it includes the following:
(b) A person commits the offence of aggravated homosexuality where an offender is a person living with HIV.
(3) Where a person is charged with the offence under this section, that person shall undergo a medical examination to ascertain his or her HIV status.
In contrast, according to the LRDC report, “…the Namibian Minister of Health admitted that the ministry had been sneaking condoms into correctional facilities. The minister identified prisoners as a vulnerable group when it comes to HIV infection, and called for the repeal of the common-law crime of sodomy, saying that we cannot let so many people die because we do not want to change laws”. Noteworthy to observe is that in the Ugandan context, HIV is treated as an added crime whereas in Namibia, because of the criminalisation of sodomy, HIV-policy interventions erase
the existence of the sexual identity of minorities. Equally important to clarify is that although the act of sodomy is separate from the sexual identity of an individual,
the conflations made demonstrate that regardless of whether any convictions are made, the cloud of stigmatisation and homophobic rhetoric still creates an inhospitable psychological environment for the person whose sexual conduct is criminalised outside of their sexuality.
For example, in Uganda, the Bill goes on to say: (1) A person commits the offence of homosexuality if the person – (c) – touches another person to commit the act of homosexuality or (d) – holds out as a lesbian, gay, transgender, a queer or any other sexual or gender identity that is contrary to the binary categories of male and female.
The former means that any kind of contact outside of the pre-defined ‘natural’ contact with a person, maybe homosexual and therefore is a crime. The latter criminalises sexuality and gender within the diversity of the community. In Namibia, the list of prohibited acts narrowed and crystallised into three separate criminal offences:
(1) sodomy (which applies only to anal intercourse between males).
(2) bestiality (which criminalises sexual relations by a person of any sex with an animal; and
(3) unnatural sexual offences (which cover various sexual activities between men).
In the same breath, “…sodomy was previously considered to comprise a number of ‘unnatural’ sexual acts which included masturbation, sexual intercourse with animals, heterosexual intercourse between Christians and Jews, oral sex and anal intercourse between people of the same or opposite sexes”. In an answering affidavit submitted by the attorney general of Namibia, Festus Mbandeka strikes down an argument by an activist currently challenging the constitutionality of the sodomy law, inserting: “I note the applicant’s contention that the existence of these laws casts a ‘veil of fear’ over those who wish to engage in homosexual sodomy. But that cannot make the impugned laws inconsistent with the Constitution,” and further goes on to say, “…the ‘risk of arrest’ inheres in every scenario where a party contemplates engaging in criminal conduct. The risk for the applicant is no different to the risk faced by those who wish to engage in other morally repugnant sexual acts”.
In the Ugandan bill, the ‘veil of fear’ is already sowed in the consciousness of
anyone (homosexual or not), who expresses physical affection to their partner.
Similarly, even when very few arrests have been made in the crimes of sodomy in Namibia, the majority of the community still lives under this ‘veil of fear’ because of society’s conflations to the convoluted nature on which the law is premised. For is it not out of fear that the current law is challenged because it is inconsistent with the promise of the protective provisions in our constitution? Namibians may not face the direct risks of arrests as Ugandans,
but it is still what the risks of arrests represent, what they are equated to – that renders
most of Festus Mbandeka’s arguments harrowingly flawed and misplaced.
To be continued…
*Ndiilokelwa Nthengwe is an award-winning activist, author and tech entrepreneur.