- Hildegard Titus
On the morning of the 21st of June 2024, journalists, members of the LGBTQIA+ community and their allies stood in line outside The High Court of Namibia on Fonnie Karuaihe Street in Windhoek.
The street–previously known as Luderitz Street–perhaps stood as symbolic foreshadowing for the decolonizing on the horizon inside the court as people stood outside with placards reading “Decolonize My Sexuality”.
After security checks at the reception, everyone hastily made their way into Courtroom B and tried to find a seat in the packed room. The presiding judge read out the verdict as follows,
“The common law offence of sodomy is declared unconstitutional and invalid. The common law offence of unnatural sexual offences is declared unconstitutional and invalid. The inclusion of the crime of sodomy in Schedule 1 of the Criminal Procedure Act, 1977 (Act 51 of 1977) is declared unconstitutional and invalid. Section 269 of the Criminal Procedure Act, 1977 (Act 51 of 1977) is declared unconstitutional and invalid. The inclusion of the crime of sodomy in Schedule 1 of the Immigration Control Act, 1993 (Act 7 of 1993) is declared unconstitutional and invalid. The inclusion of the crime of sodomy in section 68(4) of the Defence Act, 2002 (Act 1 of 2002) is declared unconstitutional and invalid. The respondents must pay the applicant’s costs of the application, such costs to include the costs of one instructing and two instructed counsel.”
The judge stood up and left the room. We all looked at each other, puzzled by how quickly it had happened. The judge hadn’t used a microphone, and the noisy air conditioner blasting warm air made it even harder to hear. Only the embraces and smiles exchanged between Friedel and his legal counsel let everyone know that it was a win for him and the community that came out in numbers to support him. Outside the court, everyone embraced, laughed, cried and stood in disbelief at the verdict.
These laws meant that their privacy rights could be violated, and gay men lived, with the constant fear that any police officer or even private citizen could barge into their homes and arrest them for the Schedule 1 offence of sodomy under the Criminal Procedure Act 51 of 1977.
These laws loomed like a dark cloud, and were a threat to the safety and dignity of any Namibian whose gender identity, gender expression or sexual orientation was considered not ‘the norm’– the rigid gender binary that was imposed in Namibia through centuries of colonial indoctrination.
The sodomy laws, although seldom enforced, still had the effect of threatening the safety, security and dignity of gay men in Namibia specifically and LGBTQIA+ Namibians in general.
These laws meant that their privacy rights could be violated, and gay men lived, with the constant fear that any police officer or even private citizen could barge into their homes and arrest them for the Schedule 1 offence of sodomy under the Criminal Procedure Act 51 of 1977.
The fight for freedom started decades ago for Friedel Dausab, the brave man who sued the government over these archaic and unconstitutional laws.
In February 2024, four months before the verdict, I had the privilege of interviewing Friedel in Swakopmund. Wearing a black T-shirt, and a tiger’s eye crystal necklace, the smell of incense wafted through the room as I had just caught him after a prayer and meditation session. He told me why he decided to contest the constitutionality of the sodomy law.
“For more than 30 years, we still have a sodomy law that prohibited the most intimate connection between two men who love each other during sex. So I brought a constitutional challenge after 30 years of activism and knowing that this law was an impediment to healthcare for all,” he shared.
In September 2017, the then Minister of Health, Dr Ben Haufiku complained that the lawmaker’s reluctance to address the sodomy law was leaving inmates in the country’s correctional facilities vulnerable to HIV infections. Dr Haufiku also shared that the ministry had to sneak condoms into the facilities because “the common-law crime of sodomy was still on the country’s law books” and prohibited them from doing so freely.
The threat of being imprisoned has always loomed over the community. In 2001, founding President Sam Nujoma called homosexuality a Western import, condemning homosexuality while addressing a crowd of students from UNAM. He said, “police are ordered to arrest you, and deport you and imprison you too”. More than twenty years later, his anti-gay sentiments still echo in the houses of Parliament where both the National Assembly and National Council co-signed the anti-LGBTQIA+ bills tabled by SWAPO MP Jerry Ekandjo. The proposed bills seek to impose up to 6 years imprisonment, a fine of N$ 100 000, or both for anyone who supports or tries to perform a same-sex marriage.
An Afrobarometer report found that Namibia was the third most tolerant country towards homosexuality in Africa after Cabo Verde and South Africa. Sixty-four percent of Namibians say they would be tolerant of having a gay neighbour, showing that Namibians are more welcoming and understanding than lawmakers think.
President Nangolo Mbumba has neither signed nor vetoed the bill. For a bill to become a law, it would need the approval of both the legislative branch (Parliament) and the executive branch (the President).
Despite the proposed bills that set to drive progress backwards, one cannot forget the legal strides that have been made in terms of the visibility and inclusion of the LGBTQIA+ community in Namibia over the past few years.
Like the high-profile Digashu and Seiler-Lillies court cases around the recognition of same-sex marriages performed abroad, Mercedez von Cloete’s case against transphobic police brutality and the Delgado Luhl cases around acceptance of LGBTQIA+ families and their children.
Outside the courts, the rise of events (like Drag Night Namibia, Pride Pop-Up, Tucks and Tiaras, the Spectrum Awards, the Women’s Leadership Lesbian Festival, Trans Remembrance Week, and annual Pride marches to name a few), we have seen the LGBTQIA+ community come out in numbers not only to support each other and celebrate their diversity, but also to fight for their rights and inclusion in the larger Namibian society.
An Afrobarometer report found that Namibia was the third most tolerant country towards homosexuality in Africa after Cabo Verde and South Africa. Sixty-four percent of Namibians say they would be tolerant of having a gay neighbour, showing that Namibians are more welcoming and understanding than lawmakers think.
However, the anti-LGBTQIA+ sentiments since the landmark ruling of the Supreme Court in May last year saw not only the introduction of two anti-LGBTQIA+ bills, but also saw a rise in hate crimes; six members of the community were murdered since the bills were tabled by SWAPO MP Jerry Ekandjo.
While some deny the connection between the bills and the increase in hate crimes, one can not deny that the dehumanising discussions within parliament seem to have emboldened and further radicalised those who do not respect the lives and dignity of members or the LGBTQIA+ community.
“I am many things, I am black, I was born into a colonial apartheid state. I am HIV-positive and I have had to navigate that. In 2000, at the age of 25, I was told that I only had two years to live if I didn’t take treatment…. but now, it is really about fighting for my humanity as a gay man. [I live] in a country where the constitution protects my rights as a human being, but the government is holding onto an old colonial apartheid law that would make me a criminal if I expressed my love to someone I loved,” continued Friedel.
On top of the sodomy law, Friedel also mentioned the importance of looking into labour legislation to ensure that all LGBTQIA+ people in Namibia are protected against discrimination in the workplace. At the time neither of us knew that four months later, the High Court of Namibia would deliver a positive verdict.
Friedel has been at the helm of fighting for community rights for almost two decades. From his time at Rainbow Project, Outright Namibia, and now working as a Safety and Security Officer for the LGBTQIA+ community, he has consistently worked and advocated for the rights and dignity of minority Namibians.
Standing outside the press conference after his verdict, Friedel’s eyes are warm with an accompanying smile. I ask him how he’s feeling.
“Today is a historic day, a culmination of my life, but more importantly a monumental day for our democracy. Today the judiciary upheld that all minorities are protected in our Constitution. That every single one of us, no matter who we are, can try to be happy even in our relationships…Our Constitution, a brilliant, brilliant document ensures equality for all, dignity for all and every single queer Namibian can start openly dreaming of a violence-free life but also of happiness. To celebrate life and to celebrate love.”
His powerful words and bravery should serve as a powerful reminder of the power to us all.
Our human rights are inalienable and meant to be upheld in all our pursuits of community, happiness and belonging.
Image credit: Opas Onucheyo
Hildegard Titus is a freelance journalist based in Windhoek, Namibia. She has a Bachelor of Arts in Photojournalism from the University of Arts London: London College of Communication in 2014 and has worked as a journalist for the past ten years. Her work has been published in both local and international publications and media houses alike, like The Namibian, The Windhoek Observer, Agence France Press, The Washington Post, eNCA, The BBC, CNN, and many more.
Her work focuses on issues of race, gender, and culture, and the intersection of the three with regards to power structures and legacies left by Namibia’s colonial and apartheid past.
