LGBT rights in Namibia

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LGBT rights in Namibia
LocationNamibia.png
Same-sex sexual intercourse legal status Male illegal since 1920
(unenforced)
Gender identity/expression Transgender people allowed to change gender
Discrimination protections No[1]
Family rights
Recognition of
relationships
No
Adoption No

Lesbian, gay, bisexual, and transgender (LGBT) persons in Namibia face legal challenges not experienced by non-LGBT residents. Discrimination based on sexual orientation and gender identity is not banned in Namibia. Households headed by same-sex couples are not eligible for the same legal protections available to opposite-sex couples.

The climate for LGBT people in Namibia has eased somewhat in recent years. The country's leading LGBT advocacy group is OutRight Namibia, formed in March 2010 and officially registered in November 2010. It has organised Namibia's first pride parades and seeks to be "a voice for lesbian women, gay men, bisexuals and transgender and intersex people in Namibia".[2] Other LGBT groups include MPower Community Trust, which provides awareness of sexual health for gay and bisexual men, the Namibian Gays and Lesbian Movement, which provides counselling and advice to LGBT people and organises educational programs to raise awareness of LGBT Namibians, TULINAM, a LGBT faith-based group, and Wings to Transcend Namibia, a transgender group.[3]

History

Homosexuality and same-sex relations have been documented among various modern-day Namibian groups. In the 18th century, the Khoikhoi people recognised the terms koetsire, which refers to a man who is sexually receptive to another man, and soregus, which refers to same-sex masturbation usually among friends. Anal intercourse and sexual relations between women also occurred, though more rarely.[4]

In the 1920s, anthropologist Kurt Falk reported homosexuality and same-sex marriage ceremonies among the Ovambo, Nama, Herero and Hima peoples. Ovambo men taking the passive role in sex with other men are called kimbanda or eshengi. Among the Herero, erotic friendships (known as oupanga) between two people, regardless of sex, were common, and typically included anal intercourse (okutunduka vanena). In the 1970s, Portuguese ethnographer Carlos Estermann observed an Ovambo tradition, where men known as esenge would dress like women, do women's work and marry other men. Ovambo society believed they were possessed by female spirits.[4][5]

Legality of same-sex sexual activity

Sexual activity among women is legal in Namibia. Sexual acts between men remains a crime in the country according to the Roman-Dutch common-law, which was imposed by the South Africans. Namibia kept this law on the books after it became independent in 1990.[1][6] However, there are no cases in which this law was ever enforced.[7]

In August 2016, the United Nations Human Rights Committee released a report in Windhoek, Namibia's capital city, calling on the country to abolish its sodomy ban.[8] Reacting to the Committee's call, John Walters, the Ombudsman of Namibia, whose office is mandated to promote and protect human rights, said that people should be free to live their lives as they see fit. Walters said:[7][9]

I think the old sodomy law has served its purpose. How many prosecutions have there been? I believe none over the past 20 years. If we don’t prosecute people, why do we have the act?

Recognition of same-sex relationships

In 2001, a Namibian woman and her German partner sued to have their relationship recognised so that the partner could reside in Namibia. Despite losing their case, the Minister of Home Affairs granted their request the following year.[10]

The Ombudsman of Namibia spoke in August 2016 on the matter of same-sex marriage and said the following:[7]

If people of the same sex would like to get married, it is their choice, whether the country, the community, churches and government acknowledge that [is something else].

In December 2017, a South African-Namibian same-sex couple filed a lawsuit against the Namibian Government to have their 2015 South African marriage recognised in Namibia. Their marriage isn't recognised by the state, causing problems for the South African partner who could not get a permanent residence permit. The couple also sued the Government to have their son, adopted in South Africa, recognised under Namibian law.[11][10]

Discrimination protections

LGBT flag map of Namibia

Discrimination on the basis of sexual orientation and gender identity is not outlawed in Namibia. The Namibian Constitution includes the category "social status", which could be interpreted as covering LGBT people.[12]

In August 2016, the United Nations Human Rights Committee called on the Government to adopt legislation explicitly prohibiting discrimination based on sexual orientation, including in the Labour Act (Act No. 11 of 2007).[8] Following the Committee's call, the Ombudsman of Namibia, argued that a measure prohibiting discrimination on the ground of sexual orientation needs to be in the Constitution.[7]

Hate crime laws

LGBT people in Namibia face discrimination, harassment and violence. Additionally, similarly to neighbouring South Africa, lesbians are occasionally the victims of so-called corrective rape, where male rapists purport to raping the lesbian victim with the intent of curing her of her sexual orientation.[8]

In August 2016, the United Nations Human Rights Committee called on Namibia to adopt hate crime legislation punishing homophobic and transphobic violence, and vigorously enforce it.[8]

Gender identity and expression

The Births, Marriages and Deaths Registration Act 81 of 1963 states that: "The Secretary may on the recommendation of the Secretary of Health, alter in the birth register of any person who has undergone a change of sex, the description of the sex of such person and may for this purpose call for such medical reports and institute such investigations as he may deem necessary."[13]

It was reported in 2015 that applications for change of sex are done on a case-by-case basis and are not problematic, as long as a person can provide medical reports of their sex change, which includes undergoing sex reassignment surgery. Once the application is granted, a transgender person can apply for a new identity document and passport.[13]

In addition, a transgender person who has not had a "change of sex" could possibly use the Identification Act 2 of 1996. The act states that "if an identity document does not reflect correctly the particulars of the person to whom it was issued, or contains a photograph which is no longer a recognizable image of that person" the Minister shall cancel it and replace it with an improved identity document.[13]

Blood donation

Individuals seeking to donate blood in Namibia must not have had more than one sexual partner within the past six months, irrespective of sexual orientation and gender. People "suspect of having contracted a sexually-transmitted disease such as HIV or syphilis" are not allowed to donate.[14]

Public opinion

A 2016 Afrobarometer opinion poll found that 55% of Namibians would welcome or would not be bothered by having a homosexual neighbour. Namibia was one of the only four countries polled with a majority in favour.[15] (the others being South Africa, Cape Verde and Mozambique)

Living conditions

In 2005, the Deputy Minister of Home Affairs and Immigration, Teopolina Mushelenga, claimed that lesbians and gay men betrayed the fight for Namibian freedom, were responsible for the HIV/AIDS pandemic, and were an insult to African culture.[16] In 2001, President Sam Nujoma warned about forthcoming purges against gays and lesbians in Namibia, saying "the police must arrest, imprison and deport homosexuals and lesbians found in Namibia."[17] Home Affairs Minister Jerry Ekandjo in 2000 urged 700 newly graduated police officers to "eliminate" gays and lesbians "from the face of Namibia".[18]

Mr Gay Namibia 2011, Wendelinus Hamutenya, was the victim of a homophobic assault in December 2011 in Windhoek.[19]

In November 2012, Ricardo Amunjera was crowned Mr Gay Namibia. The pageant took place at a theatre-restaurant in the capital city, Windhoek. Amunjera went on to later marry his life partner in 2013.[20]

In December 2013, McHenry Venaani, the president of the Democratic Turnhalle Alliance, spoke out in favor of LGBT rights and said that people should be allowed to live their private lives without interference.[21]

Namibia's first pride march took place in Windhoek in December 2013. It was attended by about 100 people.[22] The city of Swakopmund held its first pride parade in June 2016.[23] They both have continued annually since then and have not faced any impediments by the Namibian Government.

Summary table

Same-sex sexual activity legal No (For males; not enforced)/Yes (For females)
Equal age of consent No (For males)/Yes (For females)
Anti-discrimination laws in employment only No
Anti-discrimination laws in the provision of goods and services No
Anti-discrimination laws in all other areas (Incl. indirect discrimination, hate speech) No
Same-sex marriages No
Recognition of same-sex couples No
Stepchild adoption by same-sex couples No
Joint adoption by same-sex couples No
LGBT people allowed to serve openly in the military No
Right to change legal gender Yes
Access to IVF for lesbians No
Commercial surrogacy for gay male couples No
MSMs allowed to donate blood Yes

See also

References

  1. ^ a b State-sponsored Homophobia A world survey of laws prohibiting same sex activity between consenting adults Archived 19 July 2013 at WebCite
  2. ^ OutRight Namibia
  3. ^ "Namibia's Compliance with the U.N. Convention Against Torture: LGBTI Rights" (PDF). The Advocates for Human Rights. 2016.
  4. ^ a b Boy-Wives and Female Husbands
  5. ^ DAS WILHELM, Amara, Tritiya-Prakriti: People of the Third Sex. Xlibris Corporation, 21 May 2004
  6. ^ Where is it illegal to be gay?
  7. ^ a b c d Namibia’s ombudsman calls for same-sex marriage amidst UN report furore
  8. ^ a b c d UN wants homosexuality legalised in Namibia
  9. ^ Let gays be – Walters The Namibian
  10. ^ a b Namibia | Gay couple sue govt for same-sex marriage and family rights Mambaonline, 15 December 2017
  11. ^ Namibia: Govt Sued Over Gay Marriage AllAfrica.com, 14 December 2017
  12. ^ The Constitution of The Republic of Namibia
  13. ^ a b c Transgender Rights in Namibia
  14. ^ WHEN NOT TO DONATE
  15. ^ Africa’s most and least homophobic countries
  16. ^ "Namibia: African NGOs Respond to Statement by Namibian Deputy Minister on Gays and Lesbians 'Betraying the fight for freedom'", International Gay & Lesbian Human Rights Commission, 13 September 2005
  17. ^ "Namibian president announces purges against gays", afrol.com, 20 March 2001
  18. ^ "Namibia gay rights row", BBC News, 2 October 2000
  19. ^ "Mr Gay Namibia Assaulted", advocate.com, reported by Michelle Garcia, 12 December 2011
  20. ^ MIYANICWE (2013-04-17). "Everyday is a honeymoon for Mr Gay Namibia and his life partne".
  21. ^ Namibian political leader stands up for gay rights
  22. ^ NAMIBIA CELEBRATES PRIDE Mambaonline, 9 December 2013
  23. ^ Namibia’s Swakopmund celebrates its first Pride march Mambaonline, 7 June 2016

External links

  • UK government travel advice for Namibia: Local laws and customs
  • Namibia content at International Lesbian and Gay Association
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