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Namibia’s high court has ruled that a law that criminalised gay sex is unconstitutional.

After a number of setbacks in the battle for rights in African countries in recent years, this landmark ruling is a major victory for LGBTQ+ campaigners in Namibia and the continent.

Namibia inherited the law banning “sodomy” and “unnatural offences” when it gained independence from South Africa in 1990 after first being colonised by Germany.  While convictions for these colonial-era offences were rare they fuelled discrimination, and sometimes violence from the police, against LGBTQ+ folk who lived in fear of arrest.

The judgment, made by three high court judges, said the laws amounted to unfair discrimination under Namibia’s constitution, noting that the same consensual sexual conduct was not criminalised if it was between a man and a woman.

“What threat does a gay man pose to society, and who must be protected against him?” the judgment said. “We are of the firm view that the enforcement of private moral views of a section of a community (even if they form the majority of that community), which are based to a large extent on nothing more than prejudice, cannot qualify as such a legitimate purpose.”

Friedel Dausab, the Namibian LGBTQ+ activist who brought the case, said “It won’t be a crime to love anymore,” adding “I no longer feel like a criminal on the run in my own country simply because of who I am.”

“I feel elated. I’m so happy. This really is a landmark judgment, not just for me, but for our democracy.”

“I’m sitting next to my mum and we’re hoping that this message filters through to all families, so that kids are no longer estranged.”

After the judgement was read out at a high court in the capital, Windhoek, campaigners for the LGBTQ+ group Equal Namibia shared photos of people hugging in court.

Breaking: High Court Declares the Sodomy Law Unconstitutional 🏳️‍🌈🇳🇦🏳️‍⚧️ pic.twitter.com/LQyq3RdhZA

— Equal Namibia (@EqualNamibia) June 21, 2024

The UN has also applauded the ruling, calling it a “powerful step” towards a more inclusive nation that would also improve access to health services and HIV treatment as more people would be willing to come forward for testing and treatment.

But blowing caution to the wind, and fearing a backlash to the ruling, the rights group Amnesty International is urging the Namibian government to ensure the safety and dignity of LGBTQ people.

It said it had already documented instances of “alarming” and “threatening” speech in the country during the run-up to the court case.

In fact, six LGBTQ+ Namibians have been killed since the bill was passed, according to the campaign group Equal Namibia.

The BBC notes that marrying someone of the same sex is still illegal in the southern African nation.

While several nations in Africa have repealed anti-LGBTQ laws in recent years, South Africa is the only country where same-sex couples can marry and adopt.

Gay sex bans were lifted in Namibia’s neighbours Angola and Botswana, in 2021 and 2019 respectively. However, Uganda strengthened its anti-LGBTQ+ legislation last year, imposing the death penalty for “aggravated homosexuality”, which includes gay sex with a disabled person or someone over the age of 75. Then, Ghana’s parliament passed a bill that imposes a prison sentence of up to five years for the “wilful promotion, sponsorship, or support of LGBTQ+ activities”, although this hasn’t been signed by the president yet.

Of the 64 countries globally that criminalise same-sex relations, 31 are in Africa, according to Human Dignity Trust, a UK legal charity that supported Dausab. The picture of progress in LGBTQ+ rights across Africa is mixed and there is still a lot of work to do to make sure everyone feels safe and included.

[sources:guardian&bbc]