Activists gather outside the Supreme Court of Namibia on March 3, 2023, after the hearing of a case to recognize same-sex marriages legally performed outside the country and afford foreign spouses in these marriages spousal rights. (Photo by Arlana Shikongo)
WINDHOEK, Namibia | An exciting and transformative moment for the LGBTQ+ and intersex community in Namibia has been abruptly overshadowed by a barrage of homophobic opposition following a recent ruling by the country’s Supreme Court that granted recognition to same-sex marriages conducted in foreign jurisdictions.
The Supreme Court last month delivered a historic judgment, ruling same-sex marriages performed outside the country should be recognized in order to grant foreign spouses in same-sex marriages with Namibian citizens the same immigration rights afforded to opposite-sex couples.
The decision aimed to ensure equal immigration rights for these spouses, aligning with principles of equality and nondiscrimination as enshrined in the Namibian Constitution.
This landmark decision, however, has sparked a wave of opposition, with members of Parliament, prominent political figures and religious groups expressing their discontent. It has also resulted in the mushrooming of “anti-gay” groups that are spreading hate speech and violent rhetoric on social media platforms.
Prime Minister Saara Kuugongelwa-Amadhila last week said in Parliament that the “government will bring a bill to this house to seek that Parliament modifies … the relevant common law principle in order that same-sex marriages even where solemnized in countries that permit such marriages cannot be recognized in Namibia where the right to marriage is under our laws guaranteed between men and women of mature age.”
Article 14 of the Namibian Constitution states: “Men and women of full age, without any limitation due to race, color, ethnic origin, nationality, religion, creed or social or economic status shall have the right to marry and to (find) a family. They shall be entitled to equal rights as to marriage, during marriage and at its dissolution.”
Political scientist Henning Melber said while it seems some people assume this excludes same-sex marriages, the constitution does not.
“The wording does not limit equal rights to partners of the opposite sex,” he wrote in a recent opinion piece.
Furthermore, human rights activist Phil ya Nangoloh said the right to equality and nondiscrimination of LGBTQ+ and intersex people is permanently included in the country’s constitution.
He said various articles under Chapter 3 of the constitution — the chapter on fundamental human rights and freedoms — are shields which protect all people in Namibia without distinction of any kind.
“This right includes the right of LGBTQ+ people to sexual intercourse and marriage,” he said.
However, not everyone sees it that way.
Ephraim Nekongo of the Swapo Party Youth League, the youth wing of the ruling Swapo Party, said he rejected what he perceived as an agenda of cultural imperialism by foreign entities and the majority of Namibians neither recognize nor accept same-sex marriages or homosexuality.
“The Namibian Constitution and the will of the majority of the Namibian people must therefore be respected,” Nekongo said. “It is clear that this judgment has undermined our sacred identity as a country and a people.”
Environment, Forestry and Tourism Minister Pohamba Shifeta on Monday spoke out against homosexuality, specifically citing that sodomy is a crime under the country’s law.
He added the police should arrest those who publicly admit to being part of the LGBTQ+ and intersex community. Shifeta has promised to ensure that any law aimed at repealing the sodomy law is not approved.
Following allegations that the minister himself was gay, an accusation he vehemently denies, a subsequent legal action has been initiated by him against several individuals from the community who are accused of disseminating rumors about prominent leaders’ supposed homosexuality.
LGBTQ+ and intersex activists and allies held a press conference last week to discuss the threat of violence against the community. They acknowledged the troubling rise in hate speech, incitement of violence and hate crimes specifically targeted at LGBTQ+ and intersex people around the country.
A monthly drag event hosted in the country’s capital, Windhoek, the first weekend of every month was also canceled at the beginning of the month in fear of potential threats.
The polarizing conversation around rights for the LGBTQ+ and intersex community and the country’s apartheid-era sodomy law highlights the need for a national dialogue on LGBTQ+ and intersex rights, cultural diversity and constitutional interpretation. While this dialogue continues, the future of the plaintiff couples who won spousal immigration rights are once again hanging in the balance.
Home Affairs Minister Albert Kawana in response to the Supreme Court’s directive announced the ministry will refrain from processing any resident-related permits for foreign same-sex spouses married to Namibians until he receives guidance from the attorney general’s office.
The attorney general’s office in a press release said the government is currently conducting a thorough legal assessment of the judgment, taking into account its extensive legal ramifications. The statement further mentioned that the government will provide the public with an official response to the Supreme Court ruling in due course.
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