Ombudsman lashes out at sodomy law

A general policy of not bringing prosecutions based on the common law on sodomy is not an excuse to keep the discriminatory legislation on the law books, the ombudsman, John Walters, stressed last week.

Speaking at a roundtable discussion on sexual orientation and gender identity, some of Namibia's top legal minds agreed that Namibian law, along with the constitution, lacks equal and inclusive protection for Namibia's lesbian, gay, bisexual, and transgender (LGBT) citizens.

The legal experts underscored the urgent need for increased voices and legal action to address the lack of equal rights and protection for Namibia's LGBT persons and same-sex couples.

Walters, whose office hosted the discussions, stressed that open minds are needed to improve the protection of LGBT citizens and he said he hoped the platform would help “remove the shackles which chain our minds to our narrow understanding of homosexuality, if we have an understanding at all”.

He stressed that “the opposite of exclusion is not inclusion, but justice”.

Dianne Hubbard of the Legal Assistance Centre (LAC), who gave an overview of Namibian laws that either explicitly exclude LGBT persons and same-sex couples, or fail to adequately provide equal protection, stressed that the criminalisation of sodomy in Namibia has been cited as a key concern by international human rights bodies to which Namibia is a state party.

She added that the law should be “completely repealed”, as all manifestations of non-consensual sex are covered in the Combating of Rape Act which is gender-neutral and contains a broad definition of sexual acts.

Another law she highlighted as deeply problematic was the combating of domestic violence, a progressive law which offers protection only to persons in opposite-sex relationships and excludes same-sex couples from vital protection.

She said this law is a ripe area for constitutional challenge.



Deep void

Yvonne Dausab, chairperson of the Law Reform and Development Commission (LRDC) pointed out the Namibia constitution lacks “sufficient language to describe and protect rights pertaining to the LGBTI plus communities”.

Dausab added that overall Namibia's legislative framework does not include adequate safeguards to protect LGBTI persons and same-sex couples, and in some cases, there are “glaring exclusions”.

She warned that “because the protection is not there” it potentially opens the door for discrimination, victimisation and vilification of LGBT persons.

Gladice Pickering, deputy executive director at the justice ministry, explained sexual orientation or gender identity is not listed in Namibian legislation nor the constitution as a specific ground for non-discrimination. Nevertheless, she underlined that Namibia's government does not condone discrimination against anyone on any grounds.

Furthermore, Namibia as a state party to numerous international human rights treaties and laws is obliged to promote and protect the equal rights for all citizens.

She said as a result the Namibian state “cannot shy away from our responsibility to protect and promote the rights of our people”.

She conceded however that the reality on the ground, based on complaints to international human rights bodies as well as local groups, is that often LGBT persons experience discrimination and rights violations, often at the hands of state service providers, including police.

Speak up

Speakers at last week’s discussions all underscored the urgent need for a vigorous public discussion to measure the views on the issues at hand.

Pickering said the state cannot “always rely on the conservativeness of our people without having received that message from our people”.

She proposed that it might be time to “ask people” what they want and think.

While opinion was divided on whether smaller platforms are at first needed to get the conversation started versus a public referendum, all agreed that opportunities exist to tackle the lack of inclusion and equality, whether in the courts and by speaking up.
Dausab noted that, despite risks, some issues can be tackled and clarified by legal means in the courts of law.

“I don’t think it should stop us from taking a chance and saying let’s try this before the courts to see what the situation is,” she said.
She added that the LRDC is prepared to help take the public pulse on the issue by providing a platform to “raise some of these difficult issues” in order to kick-start the conversation and pave the way forward.

Pickering said Namibians are often “too complacent”, but said this could be due to a fear of speaking up.
“But I just don’t hear the voices coming out strong enough on the issues,” she said.

Hubbard added that apart from legal actions, which she underscored could be risky at times, it is also crucial that Namibian’s promote and support laws and policies that are a step in the right direction.

She highlighted the Safe Schools Framework that was launched last year which deals progressively with sexual orientation. “Namibia often has policies and documents that run ahead of our practice. That’s why I say it’s up to all of us to make those living documents.”
She said in addition, it’s time for all Namibians to “get organised and loud.”

JANA-MARI SMITH