Lack of state recognition and state-sanctioned homophobia
Monique Adams and Michelline Nawatises
June is Pride Month, when the world's LGBT communities come together and celebrate the freedom to be themselves.
The purpose of the commemorative month is to recognise the impact that lesbian, gay, bisexual and transgender individuals have had on history locally, nationally, and internationally.
Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) Pride Month is currently celebrated each year in the month of June to honour the 1969 Stonewall Uprising in Manhattan. The Stonewall Uprising was a tipping point for the Gay Liberation Movement in the United States. In the United States the last Sunday in June was initially celebrated as ‘Gay Pride Day’, but the actual day was flexible. In major cities across the nation the "day" soon grew to encompass a month-long series of events. Today, celebrations include pride parades, picnics, parties, workshops, symposia and concerts, and LGBTQ Pride Month events attract millions of participants around the world.
Legislation of Namibia
In Namibia, there is no codified sodomy provision, but it remains a crime in the country under the Roman-Dutch common law in force. Sodomy has been defined as "unlawful and intentional sexual relations per anum between two human males." This therefore excludes sexual relations per anum by heterosexual couples or lesbians.
Section 299 of the Criminal Procedure Act of 2004 (Afrikaans: Strafproseswet van 2004) makes reference to evidentiary issues on a charge of sodomy or attempted sodomy. Schedule 1 of the Act groups sodomy together with a list of other crimes for which police are authorised to make an arrest without a warrant or to use of deadly force in the course of that arrest, among other aspects (Sections 38, 42, 44, 63 and 112). Public displays of affection between two men can be considered "immoral" behaviour, which is punishable under the Combating of Immoral Practices Act of 1980
Male-to-male relationships: Not Legal
Female-to-female relationships: Legal
Marriage and substitutes for marriage: No law
See more on Namibian law at ilga.org
According to a Submission in the UPR review of Namibia: "Homosexuality per se is not illegal in Namibia, however anal sex between two males has been considered illegal under common law sodomy provisions inherited as part of the Roman-Dutch law by the time of Namibia’s of independence. The law is silent on consensual sex between two women."
Omar van Reenen, a civil rights activist, co-founder of Equal Namibia (Namibia Equal Rights Movement) and a Gay cis-gender coloured Namibian man, shared his views about the LGBTQI+ community. When asked what challenges he faces on a daily basis he said that he wouldn’t call it “challenges”, rather an attack on his human dignity. “LGBTQ+ face constant discrimination due to a lack of state recognition and state-sanctioned homophobia,” he says.
He adds that LGBTQ+ persons have always thought of themselves as equal citizens, as Namibians. The question is whether the state thinks of them in the same way. With more than nine active human rights courts cases against the ministry of home affairs, the state sends a message to the LGBTQ+ community that their human dignity is less than, that in their eyes their fundamental rights under Chapter three are second-class.
“In 2004, Dr Albert Kawana removed sexual orientation as a prohibited form of discrimination from the Labour Act, a clause that has been in place from 1992, on the basis that the LGBTQ+ community are “Illegal and criminal”. In doing so, the government told employers that their human rights are not worthy of protection. President Geingob, who chaired the Constituent Assembly that drafted the Constitution in 1989, claimed that human rights were the ‘very principles Namibians had fought for’. Yet, his response was to appoint Minister Kawana to the attorney-general, fisheries and then home affairs posts to continue to implement the government’s attack on our human dignity.”
Van Reenen further adds that in a country with skyrocketing sexual and gender-based violence, the government tabled a Domestic Violence Act in the People’s Parliament that explicitly protects “opposite-sex”, or heterosexual, couples only. Here the government promotes state-sanctioned violence amongst LGBTQ+ persons, and promotes discrimination against LGBTQ+ couples. “If the government was serious about curving GBV, they would give the same energy to the sexuality aspect in this fight,” he says.
“We face state-sanctioned homophobia in laws that prohibit joint adoption for LGBTQ+ spouses, in education, in social security, in equal access to health care, in the: Combatting of Immoral Practices Act 1980; Immigration Act 1993; Criminal Procedure Act 1997; Combating of Rape Act 2000 and the Maintenance Act of 2003. Some of these laws are colonial and apartheid-era laws a Born-Free and democratically elected government continues to uphold.
“So, independence for whom? Equality for whom? Freedom for whom? Human rights for a select few Namibians, means that in a Born-‘Free’?” he asks.
“Namibia, there is no true freedom if there is no equality for all who knock on our republic’s door. Their blood watered my freedom too. Yet, our government is so homophobic they are willing to separate babies from their parents, willing to create stateless children merely because of who their parents love.
“These are not ‘challenges’, but are persistent social injustices enforced by a patriarchal government that has lost touch with the principles of equality they fought for,” he stressed.
He adds that his family hasn’t “accepted” his sexuality, because his human dignity is not for anyone to accept. If so, that means he gives society power and authority over his life and his existence. His family loves, and understands, his sexuality - because who he loves does not change who he is at heart.
“So, I urge all LGBTQ+ Namibians to stop seeking for acceptance and tolerance, but to rather to occupy space and be genuine and true to themselves,” he says.
“Homophobia is rife, brutal and a social ill. But homophobia is not innate or inherent/intrinsic. Our ancestors fought against Apartheid because of an intrinsic part of their identity they could nothing about, their very skins - it is the same with sexual orientation and gender identity. They were told they could not love freely because of racist policies. Now, in a democratic country they have dreamed of for our generation, we have the very government who fought against oppressors policing our community’s free love because of political homophobia. But homophobia, like racism, can be unlearned. Only if we own our citizenship, take up space, love each other in the light and out of the shadows, have PRIDE in who we are, can we together heal the scars homophobia has torn in our society. Only if you come out. Your life is not for anyone to accept, not society, not the state.”
Namibia accepting the LGBTQI+ community
Namibians have always accepted the LGBTQ+ community, because the vast majority of Namibians know what inequality looks like. What injustice feels like. However, it is because of state-sanctioned homophobia that the community has faced barriers of inclusivity in society.
“Namibians’ pursuit for equality looks like Paula & Maya coming home. It looks like fighting for marriage equality. It looks like standing with Mercedez, a trans-woman, against police brutality and unlawful arrest. It looks like fighting for Yona’s citizenship, a son of a gay Namibian. Namibians know that where they stand on LGBTQ+ equality now, is where they would have stood on racial equality during Apartheid. And silence in the face of injustice, means you have chosen the side of the oppressor.
“Namibians are standing on the right side of history, it’s time our elected representatives choose which side of human rights they stand on,” he adds.
Celebrating pride month and the meaning of it
“Because of Covid, this year’s Pride Month celebrations could not be as celebratory as previous. But for me, every month is pride month. Every day I take PRIDE in who I am, in who I love. Every day is a day to take PRIDE in my sexuality and in fighting for my human dignity and existence,” Van Reenen says.
Pride Month means breathing life into Article 10 [Equality & Freedom from Discrimination]. Equality does not mean all Namibians should have uniform beliefs. But merely having PRIDE in the diversity, and difference, that make up our beautiful Republic. But that difference should not be the basis for exclusion, marginalisation, stigma and punishment. Our diversity, racially, culturally and sexuality, is our biggest strength.
“PRIDE month means sending a message that in Namibia, LGBTQ+ rights are the civil rights issue of our generation. It is a human rights issue of our time. And a human rights issue that disproportionality the youth of Namibia. And Queer Namibians have come the most stigmatised, most misunderstood and most discriminated against minority in the history of a post-independent Namibia. The disparagement of our right to love and exist is a continue source of pain. But PRIDE MONTH teaches us to love our existence, unconditionally.”
Thoughts about same-sex marriage
The current court case around same-sex marriage is not to legalised it in Namibia, but to recognise same-sex marriages entered into in foreign countries, like South Africa, which Namibia is obligated to recognise.
“For example, if a traditional San or Owambo wedding took place in Namibia under our customary law, it would be discriminatory for the United States not to recognise it. Why is there then a different standard with same-sex marriage?”
However, he is not concerned about marriage equality for LGBTQ+ Namibians.
“Marriage equality is the floor; our Constitutional recognition is the ceiling. How can we have marriage equality if our bosses can fire us for who we love? If our teachers can throw us out of class because of how we identify, if the state can separate our children and deny us families because of our status as LGBTQ+?”
Factors influencing the LGBTQI+ community from coming out in Namibia
Van Reenen says they face an oppressive government, one that lost touch with the equality principles they fought for, a government that has given their ministries and society a “licence to discriminate”.
Invisibility is a factor marginalised groups feel all too often. The invisibility Namibia’s LGBTQ+ community faces comes from being forced to hide, to live on the margins of society. They have to deal with living in the closet or face prosecution, being arrested, fired or ostracised from family and society.
“And because we have to hide, the government tells society we simply don’t exist and that our human dignity is not entitled to state recognition or protection. Here the oppressed have become the oppressors. I have one message to them: We are queer and we are here. We are queer, and we are Namibian. We are queer and we BELONG. This is our country too, we are proudly Namibian, and we are not going anywhere, Article 10 protects us too,” he concludes.
Living on the margins of society has caused a lot of trauma for their community. Discovering one’s sexuality does not have to be a trauma. He says it is a trauma because they’re dealing with a traumatised society, one that hasn’t fully dealt with the generational scars of colonialism and genocide, with the trauma apartheid has inflicted on his parents and grandparents, and with the trauma corruption and inequality, peddled by the state, that is being inflicted on my Born-Free generation.
The LGBTQI+ community in Namibia has come a long way and the road is not getting any shorter. Youth of today have no problem with expressing their views on politics and social issues and especially no problem with their sexuality.
The Zone got to speak to a young gentleman named Tuhafeni (not his real name), who classifies himself as a bisexual male, and this is his story:
“I am part of the LGBTQI+ community but I haven’t come out to the whole world that I am bisexual. My close friends know my sexuality but my family does not, growing up in a strict Oshiwambo, Christian home I know for sure my parents will disown me, so I am only going to come out when I move out and start my own life with financial support from my parents,” Tuhafeni says.
Not feeling comfortable with just being himself at home is a challenge, he finds both men and women attractive and when he is in a public setting he suppresses the attraction he has towards the same sex. Tuhafeni celebrated pride month with his girlfriend, who is also bisexual, by having dinner at a close friend’s place and went to the annual pride month celebrations.
He says Namibia makes him happy with how far the LGTBQI+ community has come by coming out of the shadows and making sure that the people will listen to their voices.
Same sex marriage is not legal in Namibia yet but Tuhafeni hopes for a different future years from now. “You shouldn’t be restricted from events like marrying someone, living in a world where you can freely love whoever you want and it is a basic human right,” Tuhafeni says.
“Our nation is a very reserved, old school and traditional nation that is why things are a bit more difficult with coming out or accepting the LGBTQI+ community.
“Pride month to me is a sense of family. Pride is a community of others who have struggled to embrace who they are after being raised to be someone they are not, and it gives the strength of my identity.
“My coming-out journey is something I will take with my time, it is very difficult because I am not living in my full truth. At the same time I just let be and let God.”
Many individuals like Tuhafeni live this way in our community. This could be your brother, son, friend or colleague. People fight with their inner demons every day and you should be grateful for not living in this kind of fear.
If you are reading this and you don’t know about all of this yet, do yourself a favour and read up on it, speak to people who are part of the LGBTQI+ community, listen to their stories and don’t judge.
With the end of Pride Month being here already, I hope everyone had an amazing pride month and to many more groundbreaking events to happen
Disclaimer: This is an opinionated feature based on LGBTQI+