{"id":1558,"date":"2022-07-28T10:48:36","date_gmt":"2022-07-28T14:48:36","guid":{"rendered":"https:\/\/sites.bu.edu\/dome\/?p=1558"},"modified":"2022-07-28T10:48:36","modified_gmt":"2022-07-28T14:48:36","slug":"the-movement-to-repeal-a-colonial-era-sodomy-law-in-namibia","status":"publish","type":"post","link":"https:\/\/sites.bu.edu\/dome\/2022\/07\/28\/the-movement-to-repeal-a-colonial-era-sodomy-law-in-namibia\/","title":{"rendered":"The Movement to Repeal a Colonial-Era Sodomy Law in Namibia"},"content":{"rendered":"

Namibia, located in Southern Africa, is, in terms of public opinion, one of the most LGBTQ+ tolerant countries on the continent<\/a><\/span>. However, sodomy is still criminalized under Roman-Dutch common law, discrimination of LGBTQ+ people is legal<\/a><\/span>, and same-sex marriages are not recognized by the courts<\/a><\/span>. While all of these issues work in tandem, right now, the greatest threat to the rights of LGBTQ+ people in the country is the unconstitutional Combatting Immoral Practices Act of 1980<\/a><\/span>. Activists have been working diligently to bring attention on both domestic and international scales to this injustice and the country\u2019s leadership have shown that they are open to a shift in the status quo.<\/p>\n

History of LGBTQ+ People in Namibia<\/strong><\/p>\n

\"\"<\/a>
AFP<\/figcaption><\/figure>\n

Many modern-day groups in Namibia have historically engaged in same-sex marriages, sexual intercourse, and tradition. Some of these groups include the Khoikhoi, Ovambo, Nama, Herero, and Himba peoples. Additionally, the Ovambo people have the tradition of the esenge<\/em>, where people assigned as male at birth would dress like women, perform womanly duties, and marry men. It is believed by the Ovambo that these people were possessed by female spirits. (173-242)<\/a><\/span> The first anti-sodomy trials in modern-day Namibia occurred while it was under German colonial rule: four Europeans were banished from the colony for violating paragraph 145 of the German code, which criminalized men having sex with men. (106)<\/a><\/span> When Namibia became a mandated territory of South Africa in 1920, South Africa implemented their Roman-Dutch common law on the country, including their anti-sodomy law. (116)<\/a><\/span>\u00a0 <\/span>Since Namibian independence in 1990, Namibia has never prosecuted anyone under their sodomy common law (9)<\/a><\/span>, however, the politicization of homophobia and the Combatting Immoral Practices Act of 1980 make the legal landscape of the nation hostile to LGBTQ+ individuals<\/a><\/span>.<\/p>\n

While anti-sodomy laws are the result of colonization, politicians and judges in Namibia have shifted that narrative by using rhetoric claiming that LGBTQ+ people are actually the \u201ccolonial import<\/a><\/span>.\u201d In the late 90\u2019s and early 2000\u2019s, politicians were often asked by media about their thoughts on LGBTQ+ individuals, with some going so far as to say that they wish to \u201celiminate\u201d LGBTQ+ people. An unenforced 2001 request from the President to, \u201carrest, imprison, and deport homosexuals and lesbians found in Namibia,\u201d went even further in politicizing homophobia for the sake of perceived political gain. In the 2010\u2019s, political parties, both those in power and opposition groups, made efforts to make homophobia a platform of their parties<\/a><\/span>.<\/p>\n

The Combating Immoral Practices Act of 1980<\/strong><\/p>\n

\"\"<\/a>
Amnesty International<\/figcaption><\/figure>\n

At the common law, sodomy is considered a Schedule I offense (along with rape, murder, and other serious crimes), which means that officers can arrest a suspected sodomizer without a warrant and can utilize deadly force during the arrest. (10)<\/a><\/span> Additionally, while the criminalization of same-sex (male only) sodomy is baked into the common law of the country, the Combatting Immoral Practices Act of 1980 strengthens the legal discrimination against LGBTQ+ people in Namibia. (103)<\/a><\/span> While this law does not make homosexuality itself illegal, it criminalizes certain \u201cimmoral\u201d sexual acts, which in combination with common law, includes sodomy, mutual masturbation, and oral sex. (12)<\/a><\/span> Additionally, it is important to note that while this act applies to all members of society, certain provisions within it can easily be interpreted to target LGBTQ+ individuals for \u201ccommitting immoral acts.\u201d These provisions include sections 7 and 8, which condemn the enticing of and commission of immoral acts. Additionally, under the act, the owner of a home that permits \u201cimmoral acts” to occur within it is subject to punishment. The term \u201cimmoral act,\u201d is never defined in the legislation, creating an issue of vagueness and notice concerns for those that could be charged under the act. Given that this law does not define \u201cimmoral acts,\u201d things as simple as a same-sex kiss in the street could be interpreted as illegal.<\/a><\/span> An example of one of the harmful interpretations of this act is the Namibian government\u2019s decision to deny prisoners access to condoms, stating that sexual activities between prisoners in a male prison would be \u201cimmoral practices.\u201d (16)<\/a>\"\"<\/a><\/a><\/span><\/p>\n

As previously noted, vagueness is a particularly large concern within the confines of the act. For example, section 17(1) of the act criminalizes the manufacturing, selling, or supplying of \u201cany article which is intended to be used to perform an unnatural sexual act.\u201d<\/a><\/span> This vagueness led sex shops to bring suit to the Namibian High Court to challenge the constitutionality of this language, as it could impede on their constitutional right to carry on a business. The Court found the \u201cunnatural sexual act\u201d language \u00a0unconstitutionally vague as it did not provide any guidance on what these were. Additionally, the Court found that \u201c\u2018unnatural\u2019 involves a value judgment varying from country to country, race to race, and age to age; it has little if any objective content.\u201d The Law Reform and Development Commission of Namibia believes that, given this ruling, \u201cthe common law crime of \u2018unnatural sexual offenses\u2019 would be similarly unconstitutional.\u201d They base this belief on two hypotheses: 1) that it limits other constitutional rights, such as the right to privacy and 2) that it is \u201can affront to the rule of law\u201d because its vagueness does not properly put people on alert of what specific behaviors could be criminalized. (27-28)<\/a><\/span><\/p>\n

Efforts to Advocate for LGBTQ+ Individuals in Namibia<\/strong><\/p>\n

According to the Namibian Constitution, all laws in effect at the time of independence, including common law, will continue to be in effect until Parliament repeals them or the Court rules them to be unconstitutional. (Art. 66-1)<\/a><\/span> In 2019, the Law Reform and Development Commission of Namibia identified the criminalization of sodomy and of \u201cunnatural sexual offenses\u201d to be obsolete laws.\u00a0 <\/span>With the funding and advocacy of nonprofits and civil society groups, they were able to complete a report to Namibia\u2019s Minister of Justice in 2020 advocating for repeal. The Commission cites to the Ombudsman\u2019s 2013 Baseline Study Report on Human Rights in Namibia<\/em> and the Parliament\u2019s National Human Rights Action Plan 2014-2019 <\/em>as supporting sources for their contention that this \u201cvulnerable group\u201d of LGBTQ+ individuals is unfairly discriminated against and criminalized for constitutionally protected behavior. (1-2)<\/a><\/span> The Commission believes that the constitutional rights being harmed by this law are the right to be equally protected under the law, the right to be free from discrimination based on sex, the right to dignity, and the right to privacy. (12-27)<\/a><\/span> The end of the report includes an appendix with draft legislation to be introduced by the Minister of Justice to Parliament to repeal these laws (67-68)<\/a><\/span>.\u00a0<\/span>In response, the Namibian Justice Minister, Yvonne Dausab, announced an intention to propose the repeal of this legislation<\/a><\/span>.<\/p>\n

Civic society groups have been at the forefront of pushing these changes. Some of these groups have joined together in a coalition called the Diversity Alliance of Namibia (DAN)<\/a><\/span>. Namibia also has the Outreach Health drop in center, which was the first LGBTQ+ health center in the country<\/a><\/span>. Additionally, in 2021, the Namibia Equal Rights Movement organized the largest pride parade in the country\u2019s history, advocating for the repeal of the laws criminalizing LGBTQ+ people<\/a><\/span>. My friend and former colleague, Omar Van Reenen, is an organizer with Equal Namibia, a youth-led movement advocating for constitutional protections for LGBTQ+ people in Namibia. On an Africa Good Morning episode, Van Reenen stated that, \u201c[t]he Constitution mandates protection of all minority and vulnerable groups. LGBTQ+ people are not asking for ‘more rights’ than heterosexual Namibians. They are asking for the ‘exact same rights’, the exact same liberties and exact same privileges under the Constitution<\/a><\/span>.\u201d<\/p>\n

\"\"<\/a>Rose Collins<\/strong> graduated from Boston University School of Law in May 2022.<\/p>\n","protected":false},"excerpt":{"rendered":"

Namibia, located in Southern Africa, is, in terms of public opinion, one of the most LGBTQ+ tolerant countries on the continent. However, sodomy is still criminalized under Roman-Dutch common law, discrimination of LGBTQ+ people is legal, and same-sex marriages are not recognized by the courts. While all of these issues work in tandem, right now, […]<\/p>\n","protected":false},"author":19479,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[3,10,383],"tags":[],"_links":{"self":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts\/1558"}],"collection":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/users\/19479"}],"replies":[{"embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/comments?post=1558"}],"version-history":[{"count":4,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts\/1558\/revisions"}],"predecessor-version":[{"id":1567,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts\/1558\/revisions\/1567"}],"wp:attachment":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/media?parent=1558"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/categories?post=1558"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/tags?post=1558"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}