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In June, the Namibian High Court struck down two sections of the country’s Sexual Offences Act that criminalised consensual sexual relations between men, finding them unconstitutional. While hardly anyone has been convicted of ‘sodomy’ or ‘unnatural sexual offences’ for decades, the fact that their relationships were criminalised forced gay men to live in fear, perpetuated stigma and denied them recognition as rights holders, enabling discrimination, harassment and abuse.

In decriminalising same-sex relations, Namibia follows in the footsteps of Mauritius, which did so at the end of 2023. In both countries, the criminalisation of consensual same-sex relations dated back to colonial times. Former British colonies inherited these criminal provisions from their colonial overlords and typically retained them at independence, long after the UK had changed its laws.

Namibia gained independence from South Africa in 1990 but retained the criminal provisions that South Africa inherited from the UK. South Africa then decriminalised male same-sex conduct in 1994 – sex between women was never criminalised – and recognised same-sex marriage in 2006, becoming the only African country to allow LGBTQI+ couples to marry and adopt children. But Namibia hadn’t followed the same path – until now.

A concerning regional landscape

Following the decriminalisation of same-sex relations, Namibia is now ranked 56th out of 196 countries on Equaldex’s Equality Index, which ranks countries according to their LGBTQI+ friendliness. Only three African countries are ranked higher: South Africa, Cabo Verde and the Seychelles, in that order.

Today, 66 countries around the world criminalise same-sex relationships: 31 in Africa, 22 in Asia and the Middle East, six in the Pacific and five in the Caribbean. A disproportionate number are members of the Commonwealth, the alliance mostly made up of countries once colonised by the UK. Thirteen of the 29 Commonwealth countries that criminalise same-sex relations are in Africa. Often this comes with harsh prison sentences – up to 14 years in Kenya and up to life imprisonment in Sierra Leone and Tanzania. In northern Nigeria and Uganda, the death penalty can apply.

Some Commonwealth African states that have long criminalised same-sex relations, including Ghana, Kenya and Uganda, are experiencing a strong conservative backlash. Typically, small gains in rights have provoked disproportionate reactions from anti-rights forces, who claim that LGBTQI+ rights are part of an imported western agenda – even though it’s criminalisation that was imported, and the anti-rights backlash is being lavishly funded by foreign forces promoting identical repressive legislation in country after country.

Civic space and activism

Namibia’s relatively healthy civic space, where freedoms of association, expression and peaceful assembly are widely respected, has allowed LGBTQI+ activism to grow. The country’s LGBTQI+ advocacy groups have worked for years to conduct educational campaigns and raise awareness, provide safe spaces, support LGBTQI+ people to access their rights, lobby policy makers, advocate for legal reforms and take legal action to challenge discrimination and establish legal precedents for LGBTQI+ rights.

As part of efforts to create a community, raise awareness, promote understanding, increase visibility and normalise the presence of LGBTQI+ people in society, LGBTQI+ groups have been organising Pride events since around 2013, with the first ‘official’ Pride parade said to have taken place in 2017.

Intertwined legal cases

Surprisingly, same-sex marriage reached Namibia’s courts long before same-sex relationships were no longer a crime. In 2017, two men who’d married in South Africa, one Namibian and the other South African, filed a court application to prevent the South African partner and the couple’s son being treated as ‘prohibited immigrants’. They argued that the Department of Home Affairs and Immigration had discriminated against them on the basis of their sexual orientation and sought recognition of their marriage and joint guardianship of their son. A similar case was then filed by a female couple – one Namibian and the other German – who’d married in Germany but wanted to retire in Namibia, and the cases were eventually merged.

In early 2018, the male couple won a petition allowing the South African partner to enter Namibia to be with his husband and son. But in January 2022, the High Court rejected the petition to recognise same-sex marriages celebrated abroad. While the judges expressed sympathy for the applicants, they said they couldn’t overturn previous rulings by Namibia’s Supreme Court. However, this raised campaigners’ hopes of a favourable decision in an eventual appeal to the Supreme Court.

Indeed, in May 2023, the Supreme Court recognised same-sex marriages performed abroad between Namibian citizens and foreign nationals. But the court also said homosexuality was a complex issue and same-sex marriage should be dealt with by parliament, not the courts.

Meanwhile, same-sex relations between consenting adult males remained a criminal offence. But the time was ripe: in 2021, Namibian LGBTQI+ activists held the country’s largest-ever Pride celebration, which included calls for the repeal of criminalisation. And in 2022, a few months after the High Court decision not to recognise foreign same-sex marriages, LGBTQI+ activist and HIV advocate Friedel Dausab challenged the common law offence of sodomy in court. Supported by the Human Dignity Trust, he argued that criminalisation of his identity was incompatible with his constitutional rights.

The High Court heard the case in 2023 and handed down its positive decision on 21 June 2024. The judges agreed that the laws criminalising same-sex relationships amounted to unfair discrimination and were therefore unconstitutional and invalid.

Conservative backlash

LGBTQI+ advocates around the world welcomed the court’s decision, as did UNAIDS, the United Nations (UN) agency leading the global effort to end HIV/AIDS. But by the time the ruling came, resistance was already underway.

In July 2023, in response to the Supreme Court ruling on same-sex marriage, parliament’s upper house quickly passed a bill banning same-sex marriages, including those contracted abroad. The bill would make it an offence to perform, participate in, promote or advertise these marriages, punishable by up to six years in prison and a fine. It was subsequently passed by parliament’s lower house and is currently awaiting the president’s decision to assent or veto. An appeal against the court’s decriminalisation decision also can’t be ruled out. The legal landscape could still take a much more regressive turn.

The way forward

While the direction of change so far makes it an example for the region, Namibia still has a long way to go. Outstanding issues include comprehensive protection against discrimination, marriage equality and adoption rights, recognition of non-binary genders, legalisation of gender reassignment and a ban on ‘conversion therapy’, a practice UN human rights experts consider akin to torture.

But social change should be as much a priority as legal progress. The Equality Index makes it clear: social attitudes lag behind the laws, with public homophobia a persistent problem. Opinion polls don’t show a linear trajectory towards greater acceptance. Instead, moral panics, episodically mobilised by anti-rights reactions, cause fluctuations over time, with no decisive majority forming in favour of equality. This means legal change alone won’t be enough, and it won’t continue unless the climate of opinion changes.

In Namibia, as elsewhere, there’s a tug-of-war between forces fighting for rights and those resisting progress in the name of what they claim is tradition and the natural order. It’s now a top priority for Namibian LGBTQI+ activists to shift attitudes. In doing so, they should show solidarity with their peers in less tolerant environments and become a source of hope beyond the country’s borders, so one day they’ll be celebrated as leaders of a progressive trend rather than outliers in a context of regression.

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