- Hildegard Titus
The Namibian Constitution was ratified on the 9th of February 1990 and came into effect 40 days later, on the 21st of March 1990–Namibia’s first Independence Day.
The Constitution was drafted after the first free parliamentary elections, which were held between the 7th and the 11th of November 1989. Before 1978, only white people were eligible to vote or run for political office. After that, while political parties representing indigenous Namibians contested elections, there were still limited options. A Constituent Assembly made up of representatives of all political parties elected late President Dr. Hage Geingob as their chairman, tasked with overseeing the drafting of the constitution.
Article 1 of the Namibian Constitution states that the Constitution is the “Supreme Law” of the country. This means that any other law in Namibia is only valid if it follows the rules and procedures described in the constitution, and the protection of rights detailed within it.
Article 1 further states that “the Republic of Namibia is hereby established as a sovereign, secular, democratic and unitary State founded upon the principles of democracy, the rule of law and justice for all.”
Not only for the rich, not only for heterosexual people, not only for people who speak a certain language. The Constitution is founded on protecting the rights of all.
Chapter 3 of the Constitution focuses on the Fundamental Rights and Freedoms (the Bill of Rights) that protect the civil and political rights of all people who live in Namibia.
The Bill of Rights includes the right to privacy, the right to marry and have a family, the right to life and liberty, freedom of speech and expression, freedom of thought, conscience and belief, freedom of association, and many others.
All these fundamental rights and freedoms have been violated when it comes to the LGBTQIA+ community in Namibia who have been denied their right to privacy, liberty, and their right to marry and have a family (amongst others) by those who are meant to be custodians of these rights and freedoms.
Members of parliament in both the National Council and National Assembly passed a bill in July 2023 that would not only limit the rights of members of the LGBTQIA+ community, but also further alienate and stigmatise an already marginalised community. The bill was not signed by the late president Dr. Hage Geingob and remains unsigned by his successor, President Nangolo Mbumba. For the bill to become enacted as a law it needs the approval of both the legislative branch (the Namibian Parliament) and the executive branch (the Namibian President).
Equal Namibia currently has a petition with nearly 10,000 signatures urging President Nangolo Mbumba not to sign the bill.
Namibia’s recently invalidated sodomy law only applied to men who have sex with men and, while it was seldom enforced, it remained in Namibia’s law books for almost 35 years after independence. During that time, it was used to control and punish members of the LGBTQIA+ community in Namibia, directly violating their intrinsic rights and freedoms.
The anti-LGBTQIA bills (often referred to as Jerry Ekandjo’s bills) have become notorious for trying to violate the rights of the LGBTQIA+ community. These laws have also been used as a tool to try and silence others–by both members of SWAPO and opposition parties. In 2021, the leader of the Landless People’s Movement (LPM) Bernadus Swartbooi, felt singled out by the National Assembly after being suspended from attending sessions due to allegations of disruptive behaviour. In retaliation, he suggested that male MPs engaging in sexual relationships with other men should also be punished for “bringing down the dignity and reputation of [the National Assembly].”
While there have been no arrests specifically for the act of sodomy in Namibia, the fact that the law existed meant that men engaged in same sex sexual activities could have technically fallen victim to unconstitutional arrest.
Sodomy was listed in the Criminal Procedure Act 51 of 1977 as a Schedule 1 offence. This designation would have given the police, or even ordinary citizens the ability to arrest someone suspected of sodomy without a warrant.
Friedel Dausab’s successful case against the Minister of Justice, the Minister of Home Affairs, Safety and Security, the Minister of Defence, the Prosecutor General and the Attorney General to repeal the unconstitutional sodomy law is not only an important moment advocating for the rights and dignity of LGBTQIA+ Namibians, but also a reminder to all that the Namibian Constitution is meant to uphold the freedoms and rights of all. Regardless of their age, background, gender identity or who they love.
On the 21st of June, 2024 the High Court of Namibia concluded that the common law offences of sodomy and unnatural sexual offences were unconstitutional and invalid as they contradict the Namibian Constitution.
This historic verdict will change the lives of all LGBTQIA+ Namibians and cement the notion that Namibia’s Constitution will always be seen as the pinnacle that defends every Namibian’s dignity and human rights.
