Namibia: High Court hears bid to overturn gay sex ban

In a landmark case, the High Court of Namibia has heard arguments in a gay man’s bid to overturn the discriminatory laws criminalising same-sex intimacy.

HIV and LGBTIQ+ rights activist Friedel Dausab contends that the country’s common law offences of sodomy and ‘unnatural sexual offences’ are in violation of his rights under Namibia’s Constitution and contravene international human rights law.

His plea to the court is twofold: to declare these offenses inconsistent with the Constitution, rendering them invalid, and to secure orders for the nullification of historic convictions related to private, consensual same-sex sexual activity.

This case, which has received support from the Human Dignity Trust, was filed in the High Court of Namibia in June 2022.

On Tuesday, the case was presented before a full bench of the court in Windhoek. Demonstrators congregated outside the court to express their solidarity with Dausab’s cause, advocating for the decriminalisation of homosexuality and bearing placards that read “we stand by Friedel” and “Decolonise my sexuality.”

The court’s verdict is anticipated to be delivered in May 2024. Speaking at a media briefing after the hearing, Dausab said he was confident of a favourable outcome.

“I could sense that our honourable team of advocates had really good and solid arguments around justice for LGBT rights in the country. I did not get the same sense from the opposing side,” he told reporters.

Dausab expressed hope that the court will issue a judgement that will ensure that “all Namibian, especially Namibians that are LGBT, will know that this is really their home, and they won’t be discriminated against.”

Challenges in the Namibian Legal Landscape

While Namibia rarely enforces the laws criminalising same-sex intimacy, the Human Dignity Trust asserts that these offences contribute to and justify discrimination against LGBTIQ+ people within the country.

Furthermore, it says, these laws serve as a pretext for neglecting public health initiatives, such as condom distribution in prisons.

The matter of LGBTIQ+ rights has become increasingly contentious in Namibia, particularly following a Supreme Court ruling in May. This mandated that the state must recognise foreign same-sex marriages conducted in countries where they are legally valid.

The ruling triggered a wave of homophobic vitriol and protests from anti-LGBTIQ+ religious leaders and politicians, and led to the passage of a bill that seeks to reverse the court’s decision and stipulate that marriage is exclusively between a man and a woman.

SALC’s team is at the High Court of Namibia today, supporting the LGBTIQ+ community in the Dausab v The Ministry of Justice & others. The case seeks to repeal the colonial sodomy law, that criminalises consensual same-sex sexual activities in Namibia. #humanrightsforall pic.twitter.com/bw7RWEVpqq

— SALC (@Follow_SALC) October 31, 2023

Today a pioneering case challenging the constitutionality of Namibia’s sodomy offences was heard before the High Court in Windhoek. We are proud to be supporting Friedel Dausab in his constitutional challenge.

You can read more about the case here: https://t.co/rc2SONzEQK pic.twitter.com/KnyUccE6sI

— Human Dignity Trust (@HumanDignityT) October 31, 2023