Connect with us

Africa

Namibian Supreme Court hears three LGBTQ rights cases

Consensual same-sex sexual relations remain criminalized

Published

on

Activists gather outside the Supreme Court of Namibia on March 3, 2023, after the hearing of a case to recognize same-sex marriages legally performed outside the country and afford foreign spouses in these marriages spousal rights. (Photo by Arlana Shikongo)

The Supreme Court of Namibia will soon issue rulings in three pivotal cases involving LGBTQ and intersex people that will set a precedent for the recognition of same-sex marriages and spousal immigration rights for non-Namibian partners. 

Furthermore, a case is soon to be heard in the country’s high court that will challenge the southern African nation’s antiquated sodomy law. 

These cases have incited public debate around LGBTQ and intersex rights in a country where homosexuality is a controversial and polarizing subject.

This is the first time since 2001 that Namibia’s highest court will hear cases regarding same-sex relationships. It is also the first time the high court will hear arguments regarding the sodomy law.

The first hearing, which took place on March 3, was the joint cases of Digashu and Seiler-Lilles versus the government.

The applicants — both foreign nationals married to Namibian citizens — in both cases are seeking recognition of their marriages concluded outside Namibia in order to access spousal immigration rights such as permanent residence and employment authorization. 

The second hearing, which took place on March 6, was in the case of a Namibian man married to a Mexican man seeking citizenship by descent for their children born via surrogate. The government has demanded DNA testing to prove that the Namibian national is the biological father to the children. 

In the last case, a gay Namibian man is not only challenging the constitutionality of the country’s sodomy law but also the prohibition of “unnatural sexual offenses.” 

While the cases represent a crucial moment for the country’s LGBTQ and intersex community and their rights, individual people and families fighting a fight bigger than they had foreseen are at the center of these cases. 

Marriage, immigration and the law

South African citizen Daniel Digashu married Namibian national Johann Potgieter in South Africa in 2015. The couple and their son moved to Namibia in 2017.

While the move was favorable for the family, the law around same-sex marriage was not.

Digashu’s first encounter with the Home Affairs and Immigration Ministry was not to have them officially recognize his marriage. He was applying for a permit allowing him to work in the country in the company that he jointly started with his husband. 

“We’ve always had a dream to live on a farm and run this tourism company. We registered the company first, about six months before we officially moved,” Digashu said. 

He said the ministry advised him against applying for permanent residency because the country does not recognize his marriage. Officials instead told him to seek a work permit.

Despite assurances from the ministry’s personnel, the application was denied. Digashu filed an appeal, and that was denied too. 

From this moment to today, Digashu has lived a life in limbo. 

Due to the ongoing court cases, he is able to renew his visitor’s visa every few months. This, he said, comes with exhausting administrative costs that legal fees exacerbate.

Digashu said the process has put psychological, emotional and financial strain on his family. 

“Prior to finding funding it had been quite difficult financially. It is not something that a lot of people would afford. I don’t think we even could afford it. That’s why we sought out and looked for funding and luckily we found that,” he said.

As they await the judgment of their hearing, everything remains the same for Digashu and his family: His husband remains the sole breadwinner as Digashu himself still cannot work.

Namibian citizen Anette Seiler and her German wife Anita Seiler-Lilles face the same dilemma.

Neither expected to become cornerstones of the advocacy around marriage equality and LGBTQ and intersex rights in Namibia. 

“We didn’t plan to come to Namibia in the early 2000s,” said Seiler. “We thought we might want to come back when Anita didn’t have to work anymore, and that would be many years later. So, we didn’t think so much in terms of gay rights in Namibia at that time.”

“It was a very personal thing for us to get married. We were not active in Namibia or Germany in the gay community,” she added. 

Both couples have received copious amounts of support from the local LGBTQ and intersex community and civil society as they fight to be afforded the same spousal rights that would be granted to opposite-sex couples. 

Citizenship by descent and the right to family

As Namibia grapples with the recognition of same-sex marriages, the right to family and protections of them is another matter that has come under scrutiny.

Namibian citizen Phillip Lühl and his husband, Mexican national Guillermo Delgado, are fighting for their children born via surrogacy to be granted Namibian citizenship by descent. 

Delgado and Lühl say they are fighting for their children’s birthright.

While both fathers are listed on the children’s South African birth certificates, the Namibian government has demanded DNA proof that Lühl is the biological parent of the children. 

“The fact is that any other South African birth certificate is accepted but in our case it’s not because we’re of the same sex. In the case of a heterosexual couple, nobody will ever ask for any proof or dispute the validity of the document, but in our case it is,” Lühl said. 

The children have been granted Mexican citizenship by descent after a rigorous process that ended with the country’s Foreign Affairs Ministry granting it.

“They initially were not favorable but concluded that Mexico would recognize a process that was duly and procedurally done in a constituency that they recognize, namely South Africa,” Delgado explained. 

The family nevertheless plans to stay in Namibia and continue to fight the government for their children’s birthright and the recognition of their family.

Their case scrutinizes the ambit of the Namibian Constitution, which affords all its citizens protection against discrimination and the right to family. 

‘Apartheid-era’ sodomy law

In the final case, Namibian gay activist Friedel Dausab has filed a constitutional challenge against the common law crime of sodomy and the prohibition of “unnatural” sexual acts. 

Dausab brought a case against the government in June 2020 stating that the law promotes stigma and exclusion, and instigates the criminalization of consensual same-sex sexual acts between men.

Dausab argues that the offenses under the law are incompatible with the constitutional rights to equality, dignity, privacy, freedom of association and freedom of expression. He also argues that the crime of “unnatural sexual offenses” is too vague to be compatible with the constitution.

“I am challenging these laws as a lifelong and dedicated activist because I am acutely aware that criminalization is a clear obstacle to living a full, open, honest and healthy life,” he said.

Namibian Attorney General Festus Mbandeka in a recent affidavit he submitted to the high court said same-sex sexual conduct is immoral and unacceptable to many Namibians. Mbandeka further denied the existence of the sodomy law stigmatizes gay men. 

“If these men suffer any stigma it is in consequence of their choice to engage in sexual conduct considered to be morally taboo in our society,” Mbandeka said.

While it is reported that 64 sodomy-related arrests were made between 2003-2019, the offenses are rarely enforced. The country’s Criminal Procedure Act 51 of 1977 nevertheless lists “sodomy” as a Schedule 1 offense.

The U.K.-based organization Human Dignity Trust says this listing means that either a police officer or an ordinary citizen can arrest anyone who is reasonably suspected of having committed the offense without needing a warrant. It is legal to use lethal force to kill them if the suspect attempts to evade arrest.

Namibia remains one of the few countries in southern Africa that is yet to abolish its sodomy law. Angola, Botswana, Lesotho, Mozambique and South Africa have already done so. 

Advertisement
FUND LGBTQ JOURNALISM
SIGN UP FOR E-BLAST

Africa

Burundi’s president reiterates LGBTQ people should be stoned in a stadium

Évariste Ndayishimiye first made comment last December

Published

on

Burundian President Évariste Ndayishimiye (Screen capture via Gentil Gedeon Official YouTube)

Burundian President Évariste Ndayishimiye on March 8 reiterated his call for LGBTQ people to be stoned in a stadium.

Ndayishimiye made the remark during the commemoration of the International Women’s Day in Gitega, the country’s political capital. He first called for the public stoning of LGBTQ people last December during a public event.

LGBTQ activists sharply criticized the comments and some international diplomats even threatened to cut economic ties with Burundi. Ndayishimiye, however, seems unmoved by this pushback and maintained that if it meant if his nation would cut economic ties with the developed countries on the basis of his anti-LGBTQ stance then so be it, reaffirming that nothing will change his stance.  

Jésus Dior Kant, a gay man and LGBTQ activist from Burundi, said the president’s remarks are tantamount to publicly calling for the lynching of gay people.

“This violent and anti-LGBT+ rhetoric endangers the lives of many individuals in Burundi and stains the nation’s commitment to human rights,” said Kant. “Such discourse not only incites homophobia and violence but also violates international human rights laws and norms that protect individuals regardless of their sexual orientation or gender identity.”

Kant also said what Ndayishimiye said now poses a real and immediate threat for LGBTQ people in the country.

“The impact of this statement is not merely rhetorical, it poses a real and immediate threat to the safety and well-being of the LGBT+ community in Burundi,” said Kant. “It encourages hate crimes, promotes discrimination and undermines progress made towards equality and justice. This is not just a problem for the LGBT+ community but a stain on the moral fabric of our global society, reflecting on us all.”

Kant called for Ndayishimiye to immediately withdraw his remarks and commit to protecting the rights of LGBTQ people in the country.

“Your call to stone gay individuals constitutes a blatant violation of human rights and an incitement to violence and discrimination,” said Kant. “We implore you to take the necessary measures to withdraw your statement advocating violence against the LGBT+ community, commit to protecting LGBT+ individuals in Burundi by enforcing laws that guarantee rights and well-being and respecting international human rights conventions, ensuring that Burundi is a nation that respects and values every human life.” 

Clémentine de Montjoye, a researcher at Human Rights Watch’s Africa Division, said the anti-LGBTQ crackdown in Burundi could become worse, including continued political repression and restrictions on freedom of expression to maintain the governing party’s control. 

“This type of fearmongering is not new in Burundi, where sexual relations between people of the same sex have been illegal since former President Pierre Nkurunziza signed a new criminal code into law in 2009,” noted de Montjove. “The law was a fierce blow to Burundi’s LGBT people, who had begun to come out and organize, albeit in small numbers, to demand their rights be respected.”

De Montjove further noted the National Assembly’s human rights commission added the anti-homosexuality provision in the 2009 criminal code at the last minute, apparently under pressure from Nkurunziza, who made statements on television that described homosexuality as a curse.

“Ndayishimiye, who presents himself as a progressive, rights-respecting leader, should be working to reverse this trend rather than stoking more fear and hatred,” said de Montjoye.

Continue Reading

Africa

Ugandan appeals court upholds ruling that blocked LGBTQ group from registering

Decision ‘doesn’t faze us’

Published

on

(Image by rarrarorro/Bigstock)

A Ugandan appeals court on Tuesday upheld a ruling that prevented an LGBTQ rights group from legally registering in the country.

The Uganda Registration Services Bureau in 2012 refused to legally recognize Sexual Minorities Uganda. The Uganda High Court upheld the decision in 2018, and SMUG appealed it to the country’s Registrar Court of Appeal.

“The LGBTQ community views this ruling as a missed opportunity to address the suppression of their freedom of association, instead focusing on perceived societal norms,” said SMUG in a press release. “It underscores a recurring trend in Ugandan courts, wherein rights of LGBTQ persons are marginalized, further widening the gap between legal protections and lived realities and experiences.”

Katie Hultquist of Outright International in a post to her X account expressed her personal support for SMUG Executive Director Frank Mugisha, his organization and other activists in the country. Mugisha said SMUG is “fully committed to elevating this challenge to the next level.” 

“After thorough debriefing, we will communicate our next strategic steps,” said Mugisha. “This ruling doesn’t faze us.”

The appeals court issued its ruling less than a year after President Yoweri Museveni signed the country’s Anti-Homosexuality Act, which contains a death penalty provision for “aggravated homosexuality.”

The Constitutional Court in December heard arguments in a lawsuit that challenges the law. It is not clear when a ruling will be issued.

Continue Reading

Africa

Prominent Angolan activist found dead in his home

Authorities say Carlos Fernandes showed signs he was strangled

Published

on

Carlos Fernandes (Photo courtesy of USAID Administrator Samantha Power's X account)

Authorities in Angola on Feb. 26 found a prominent activist dead in his home.

Associação Íris Angola in a Facebook post wrote Carlos Fernandes, the group’s executive director, “was found lifeless in his residence” in Luanda, the country’s capital. Angolan media reports indicate authorities continue to investigate his death, but they suspect he was strangled.

His funeral took place on March 1. Activists throughout the country have organized candlelight vigils and other events to honor Fernandes.

“His departure leaves a huge void in our community and a deep mourning in our hearts,” said Associação Íris Angola.

Angolan lawmakers in 2020 decriminalized consensual same-sex sexual relations and banned violence and discrimination based on sexual orientation in the former Portuguese colony. Fernandes was among the activists who championed these advances.

The State Department’s 2022 human rights report notes violence and discrimination based on sexual orientation and gender identity remains commonplace in Angola. Angolan media reports indicate Fernandes is the second LGBTQ person found dead with signs of strangulation in recent weeks.  

“Carlos Fernandes led the first LGBTQI+ group in Angola, and tirelessly advocated for human rights and ending the threat of HIV/AIDS,” said U.S. Agency for International Development Samantha Power in a March 6 post to her X account.

U.S. Ambassador to Angola and São Tomé and Príncipe Tulinabo Mushingi in a statement noted his embassy “was proud to partner with Mr. Fernandes over the past decade.”

“We are grateful for his important contributions to our programs supporting human rights, fighting against stigma and discrimination, expanding access to health and education resources for LGBTQI+ communities, combatting human trafficking and more,” said Mushingi. “In particular, his contributions to our PEPFAR (President’s Emergency Plan for AIDS Relief) program expanded protection and treatment for HIV/AIDS to previously unreached communities.”

PEPFAR echoed these sentiments, noting Fernandes’ “contributions expanded protection and treatment for HIV/AIDS to previously unreached communities.”

“Carlos Fernandes is remembered as a resolute, strong, welcoming person,” said Mushingi. “As a true pioneer in the fight against discrimination, he created a family among the LGBTQI+ community in Angola, and his legacy as an activist will be carried on by generations of LGBTQI+ Angolans.”  

“We trust that the Angolan authorities will conduct a thorough investigation to ensure that any parties responsible are held accountable,” he added.

Continue Reading
Advertisement
Advertisement

Sign Up for Weekly E-Blast

Follow Us @washblade

Advertisement

Popular