Kelvin Vries
In a recent submission to the High Court of Namibia, the attorney-general argued that the crime of sodomy is justified as most Namibians still reject homosexuality. The AG primarily relied on “parliament’s activities” that do not suggest a “legislative trend” towards decriminalising sodomy.
According to the affidavit, the parliament, as “the people’s” elected representative, is the best indicator for the values, aspirations and ideals of the Namibian people.
Anthony Brown, in One Namibia, One (heterosexual) Nation makes an interesting observation about the evolving narrative on homosexuality in Namibia. He notes that Namibia’s founding president “publicly produced and maintained a repulsive image of homosexuality” that “constructed Namibia as a homophobic country”.
The second president “did not express any homophobic sentiments, which led to more tolerance towards sexual diversity in Namibia”. The current president pledged to build an all-inclusive Namibia where no Namibian is left out, enabling dialogue among different stakeholders.
The evolving narratives are also reflected in court judgements.
In 2001, the Supreme Court in the Frank case held that the Namibian Constitution does not protect same-sex relationships, quoting the sentiments of President Sam Nujoma and the likes of Jerry Ekandjo. During Hifikepunye Pohamba’s reign, the court did not hear any cases concerning the rights of sexual minorities. Since Hage Geingob’s term commenced, courts have handed down four judgements which concern sexual minorities around the right to marry, to work and to raise a family. In addition, there are at least three more cases pending before both the High and Supreme Courts.
As a legal scholar, I am tempted to argue that the values, aspirations and ideals of Namibia are primarily stated in the constitution, and that public opinion should not dictate the adjudication of fundamental rights. Here, I make a different claim - even if we were to rely on the views of the majority, Namibian society is at the very least tolerant towards sexual minorities.
We must admit that the narrative on homosexuality in Namibia has always been exaggerated for political gains, but more importantly, that has also changed. A 2019 Afro Barometer survey shows that 64% of Namibians would like or “not care” if their neighbour were gay, an increase from 54% in 2017. The growing number of civil societies such as Equal Namibia and Sister Namibia have brought LGBT rights to the forefront of politics. Events like Pride Pop Up, Mr Gay Namibia and Drag Nights - often attended in hundreds -has heightened the visibility (and celebration) of the queer community in Namibia.
In a recent judgement, the High Court of Namibia held that no person can be discriminated against on the grounds of sexual orientation. There are even progressive views amongst church leaders. with reverend Jonathan Hevita in 2019 encouraging the government to “legalise homosexuality”, and urging other churches to open their doors to everybody, despite their sexual orientation.
In light of the above, when the attorney general declares that the majority of Namibians reject homosexuality in his recent submission to the High Court, one can’t help but be baffled about the source of his claims – especially when all else suggests otherwise.
The views of the people and the executive have clearly become more tolerant. Neither can the opinions of a few parliamentarians during debates be said to represent the parliament in its entirety as a State organ, when no legislation has been passed in that respect. The very crime of sodomy inherited from apartheid and purported by the AG to represent the majoritarian view has hardly ever been implemented. Moreover, parliament included “sexual orientation” as a ground of non-prohibition in the Labour Act, until it was later removed arbitrarily. All this suggests that at the very least, the State is not concerned with criminalising private acts amongst consenting adults.
Above what any president, or elected parliament has to say about the values of the Namibian people, it may be helpful to reflect on our history. What sort of society do we as Namibians want to cultivate? Is it one where the State impairs dignity, humiliates individuals based solely on their identity, and has a monopoly over who the constitution protects? Using the arsenal of the state, a few political elites continue to manipulate the narrative around homosexuality in Namibia, in turn reproducing the core tenets of the Apartheid regime, and shifting the emphasis from race to gender and sexual orientation.
We must never forget that the highest expression of Namibian values is entrenched in the constitution. Our constitution is founded in the undeniable recognition for human dignity. To rely on, as the AG has, on popular expressions of distaste, dislike or hatred for sexual minorities is to misunderstand the essence of our constitution. Following in the footsteps of a dark past, the AG is looking to use the law to enforce systematic discrimination against sexual minorities who are otherwise protected by the constitution.
This is a constitution that bestows upon courts the constitutional power to review discriminatory laws that violate fundamental human rights.
-Kelvin Vries is a PhD candidate in Constitutional Law at the University of Oxford.