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Namibian Supreme Court hears three LGBTQ rights cases

Consensual same-sex sexual relations remain criminalized

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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. 

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Africa

Kenyan advocacy group offers safety tips to LGBTQ hookup app users

Blackmail, kidnappings and assaults are commonplace

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(Bigstock photo)

The growing cases of queer people in Africa becoming victims of blackmail, physical and sexual assault from online hook-ups have compelled a Kenyan LGBTQ rights group to work with the community to help it stay safe when using digital platforms.

Upinde Advocates for Inclusion held a 3-day training from May 11-14 to teach queer people about unsafe social media and dating app hook-up practices that suspected homophobes exploit.

The Mombasa-based group of which Lizzie Ngina is executive coordinator noted lesbian, bisexual and queer women, and gender non-conforming people are the most frequent targets online and on Grindr and other dating apps.

 “LBQ women and GNC persons confront major challenges in terms of digital security and data protection, freedom of expression, assembly, association, speech, privacy, protest and online organizing,” Upinde Advocates for Inclusion stated.

Although the digital platforms were seen as convenient meet-up places for LGBTQ people in overcoming physical anti-gay attacks, Upinde Advocates for Inclusion said anti-gay discrimination, marginalization, gender-based violence, misinformation, and disinformation limits LGBTQ and gender non-conforming people from accessing the social media services.    

Queer people while using dating apps and social media for hookups were, however, urged to first trust their intuition before deciding to have a physical meeting with people with whom they chat online.

“If it does not seem like someone you are messaging is using their true identity, they probably are not. In this case, do not agree to meet them in person,” Upinde Advocates for Inclusion warned. 

It asked LGBTQ users to ensure the first in-person meeting with someone they met online is in a public place that is queer-friendly and known to them. Upinde Advocates for Inclusion also advised queer people to inform their trusted friends or family about their meeting plans, the place, and how long they expect it will take place in order to ensure someone can intervene if something goes wrong.

“Organize your own means of transport to and from the meeting, and do not accept a free ride from a stranger,” the group warned. “Also, do not move to a secondary location if you feel unsure during the meeting.” 

Upinde Advocates for Inclusion also warned queer app users to remain sober during the meeting and cautioned against leaving their food or drinks unattended in order to avoid any potential risks associated with spiking.

The National Gay and Lesbian Human Rights Commission, Ishtar-MSM and other Kenyan LGBTQ advocacy groups that offer legal aid to queer people last year reported about 100 cases of blackmail, extortion, physical and sexual assault against their members by suspected homophobes they met on dating apps and social media.

The two organizations this month noted 10 of the cases are expected before courts soon, although they said most victims of anti-gay attacks don’t report them to the authorities because they fear further stigmatization and discrimination. Consensual same-sex sexual relations also remain criminalized in Kenya. 

Targeting the LGBTQ community on digital platforms and dating apps is not unique to Kenya.

The Washington Blade last month reported it is still risky for queer Nigerians to search for a partner or to use gay dating apps infiltrated by homophobes who lure them to meet in-person and then rob or assault them. South African authorities last year arrested four men in connection with the targeting of Grindr users.

LGBTQ Kenyans urged to protect themselves at protests

Upinde Advocates for Inclusion in their workshop taught participants about the signs that suspected homophobes or their associates have compromised their devices. They include unusual activities on their cell phones that include calls with untraced history, disappearing blank messages, blinking screens, high data consumption, devices that overheat when not in use and echo when picking calls and quick battery depletion with minimal use.

“If you suspect your device is compromised, do not format or reset it, log out all the accounts, find an alternative device to use, change the password for the accounts on the device, and do not connect the gadget to any other devices,” Upinde Advocates for Inclusion warned. 

The group also taught queer people about how they should conduct themselves when taking part in street protests amid anti-gay attacks. Upinde Advocates for Inclusion advised them to always to identify safe alternative routes to and from the protests, wear comfortable running shoes, and always carry a spare outfit that is not LGBTQ-specific.

“If you are in a group, always strategize on having a meeting point should there be any danger or should you get separated,” the group stated. “Also, try to split up responsibilities among the group so that one person can’t be targeted.”

Upinde Advocates for Inclusion also urged queer people to always leave a protest before it ends, to have an emergency contact on speed dial or memorize it for immediate help in case of danger and to always to keep in touch with a trusted contact who is familiar with the protest but not attending it. 

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Ugandan president meets with US ambassador

Unclear whether William Popp raised Anti-Homosexuality Act

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Ugandan President Yoweri Museveni meets with U.S. Ambassador to Uganda William Popp on May 10, 2024. (Photo courtesy of Museveni's X account)

Editor’s note: This article has been updated.

Ugandan President Yoweri Museveni on May 10 met with U.S. Ambassador to Uganda William Popp.

Museveni in a post to his X account described the meeting, which took place at his official residence in Entebbe, as “productive.”

“We discussed key issues, such as the upcoming Census, regional peace, and socio-economic development. I emphasized the need for an inclusive census for informed decision-making,” said Museveni. “I also shared my views on fostering peace and security in the region. Additionally, we discussed opportunities in transitioning our population from a rural-based pre-capitalist society to industry and services.”

statement the Ugandan Foreign Affairs Ministry released noted Popp “conveyed his appreciation for the president’s valuable time and wise counsel.” 

“He also acknowledged President Museveni’s extensive knowledge and experience, underscoring the importance of their continued dialogue in fostering a strong and mutually beneficial relationship between the United States and Uganda,” said the statement.

The statement further notes Foreign Affairs Minister Jele Odongo; Defense and Veterans Affairs Minister Jacob Oboth-Oboth; Rosette Byengoma of the Defense Ministry; and Lt. Gen. Samuel Okiding, who is deputy chief of the Ugandan defense forces, attended the meeting.

The meeting took place nearly a year after Museveni signed the Anti-Homosexuality Act that, among other things, contains a death penalty provision for “aggravated homosexuality.”

The U.S. has sanctioned Ugandan officials and removed the country from a duty-free trade program. The World Bank Group also suspended new loans to Uganda in response to the Anti-Homosexuality Act.

The Ugandan Constitutional Court last month refused to “nullify the Anti-Homosexuality Act in its totality.” A group of Ugandan LGBTQ activists have appealed the ruling.

It is not clear whether Popp raised the Anti-Homosexuality Act with Museveni during their meeting.

“We do not discuss the details of private diplomatic engagements; however, we have regularly raised with the highest levels of Ugandan government U.S. government concerns about democratic space, rule of law, and respect for human rights for all Ugandans, including members of the LGBTQI+ community in relation to the 2023 Anti-Homosexuality Act,” a State Department spokesperson told the Washington Blade on Wednesday.

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South African president signs new hate crimes, hate speech law

Advocates largely welcome new statute

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South African President Cyril Ramaphosa during a campaign stop speaking with attendees at the ANC Party Rally on May 10, 2024 in Tshwane, South Africa (Photo courtesy of Ramaphosa's Facebook page)

South African LGBTQ organizations have welcomed a new law that seeks to combat hate crimes and hate speech.

President Cyril Ramaphosa on May 9 signed the Preventing and Combating of Hate Crimes and Hate Speech Bill that had been introduced in 2018.

According to the new law; the direct or indirect unfair discrimination against anyone on the grounds of age, albinism, culture, disability, ethnic or social origin, gender, HIV status, language, nationality, migrant, refugee status, asylum seekers, occupation, trade, political affiliation, conviction, race, religion, sex, sexual orientation, gender identity or expression, sex characteristics or skin color is a criminal offense punishable by a fine or up to eight years in prison.

“A hate crime is committed if a person commits any recognized offense under any law that is motivated by prejudice or intolerance based on one or more characteristics or perceived characteristics of the victim, as listed in the legislation or a family member of the victim,” said the president’s office. “The law also makes it an offense when speech material is intentionally distributed or made available in electronic communication, and the said person knows that such electronic communication constitutes hate speech.”

Crimen injuria, the unlawful and intentional impairing of dignity or privacy of another person under common law, was in place before the new law. Crimen injuria, which to extent protected some forms of hate against the LGBTQ community, is still active.

The Preventing and Combating of Hate Crimes and Hate Speech Bill, however, is more comprehensive in the sense that it particularly focuses on hate speech and hate crimes, and therefore makes it easier to seek legal recourse than under crimen injuria.

“As Out, we commend President Cyril Ramaphosa on the move that he has made in making sure that the rights of LGBTQ+ persons are protected. We, as Out, also hope that other African countries can learn from this historic milestone that all people are equal and that their rights should be protected,” said Out LGBT South Rights Human Rights Coordinator Sibonelo Ncanana. 

Ncanana specifically applauded Deputy Justice and Constitutional Development Minister John Jeffrey and the working group that helped secure the bill’s passage.

“We hope that all government departments will enforce the mandate of the act,” said Ncanana. “We also hope that it will help in decreasing the amount of hate crimes that are happening in South Africa, create safer communities, and that LGBTQ+ people will find themselves safe.”

Ruth Maseko of Umndeni LGBTI Group and the Triangle Project said the new law creates a precedent of what constitutes hate crime and the repercussions.

“We are delighted at the passing of the bill after so many years, as it creates a legal definition of hate crimes,” said Maseko. “This now puts in place mechanisms for authorities to collect and report details about these incidents of hate for the effective monitoring, analysis of trends, and appropriate interventions that are needed.”

Maseko added that although the new law will aid in giving the courts a framework to work in when handling cases of hate, it will not really deter people from committing those crimes.

“The new law will provide quantitative and qualitative data as currently we have no way of telling how many of these crimes are committed. The only way we know, is when they are reported to a civil society organization or are reported in the media,” said Maseko.

“Although it will do nothing to change the attitudes of people who act out in these ways, the law does send out a message that hate crimes will not be tolerated in South Africa and will provide additional tools to investigators and prosecutors to hold perpetrators accountable for their actions,” added Maseko.

The law, however, does not consider actions undertaken in good faith as part of hate speech. They include artistic creativity, performance or other form of expression, academic or scientific inquiry fair, and accurate reporting or commentary in the public interest. 

It also excludes interpretation and articulating or espousing of any religious conviction, tenet, belief, teaching, doctrine or writing that does not advocate hatred or constitutes incitement to cause harm. The law also contains directives on training and other measures to be undertaken by the South African Police Service and the National Prosecuting Authority to ensure effective processing of the newly defined crimes. 

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