Africa
Namibian Supreme Court hears three LGBTQ rights cases
Consensual same-sex sexual relations remain criminalized
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.
Uganda
Uganda Human Rights Commission asks government to decriminalize homosexuality
Anti-Homosexuality Act took effect in 2023
Uganda’s state-funded human rights body has broken its silence on the queer community’s rights by advocating for their protection amid the enacted Anti-Homosexuality Act that is currently under appeal at the Supreme Court.
The Uganda Human Rights Commission on Sept. 26 while defending LGBTQ rights asked President Yoweri Museveni’s government to decriminalize homosexuality and other “victimless crimes.”
“Criminalizing such acts often results in unjust and disproportionate punishment, especially for vulnerable groups in our society,” Mariam Wangadya, who chairs the commission, said.
Wangadya, a lawyer and human rights advocate, spoke for the first time about the commission’s position on queer rights in Uganda since President Yoweri Museveni in May 2023 signed the Anti-Homosexuality Act.
She spoke during the annual stakeholders meeting for ACTV-Uganda, a rights organization that advocates against torture, gender-based violence, and other forms of violence, and has provided care to victims and survivors for 30 years with the commission’s support.
Wangadya acknowledged ACTV-Uganda’s important role in providing the commission with medical reports for torture cases to assist it in determining compensation for survivors of torture to rebuild their lives.
“Of the 939 cases currently pending a hearing before our tribunal, 50 percent of those are allegations of violation of the right to freedom from torture, inhuman and degrading treatment,” she noted.
Her sentiments on the commission’s stand on LGBTQ rights also come barely two weeks after holding talks with two rights groups: The Human Rights Awareness and Promotion Forum (HRAPF) and Support Initiative for People with Congenital Disorders (SIPD), an intersex lobby group, on Sept. 14.
The meeting between the commission, HRAPF, and SIPD, which also documents and publishes reports on queer rights abuses in Uganda, explored human rights violations based on sexual orientation, gender identity and expression, and sex characteristics.
“We must ensure that every person in Uganda enjoys their human rights without discrimination,” Wangadya said.
The commission also noted that engaging the intersex lobby group was vital to address their “often-overlooked issues and rights.”
The Ugandan government has yet to recognize intersex people as a protected minority group, unlike in Kenya. This year’s national Census did not count them.
HRAPF Executive Director Adrian Jjuuko applauded the meeting with Wangadya as a “progressive step” in defending the rights of the queer community and intersex people.
“We commend the commission on creating a space for dialogue on issues of criminalized minorities in Uganda,” Jjuuko said.
Wangadya held the first meeting with Jjuuko on Sept. 9. It focused on HRAPF’s periodical reports on violations against sexual minorities in Uganda.
Wangadya and Jjuuko during the meeting both agreed that all people deserve protection under the law and the commission has to protect everyone, regardless of their sexual orientation and gender identity.
“You need to talk to the Judiciary, the police, and the director of Public Prosecutions. These are our major disturbing areas,” Jjuuko said, accusing the three government agencies of undermining intersex and LGBTQ rights in the country.
Wangadya acknowledged the contribution of the three judicial agencies in protecting and upholding human rights, but noted that there is a need for working with Kenya, South Africa, and other countries to understand how they navigate LGBTQ and intersex legal issues.
“Kenya will be much better for benchmarking considering that in South Africa the constitution provides for that (queer rights.) Benchmarking from a country like Kenya with similar laws may be more helpful,” she said.
The Wangadya also committed to tapping into HRAPF’s human rights strategies and experiences to improve the commission’s mechanisms.
HRAPF promotes respect for the rights of marginalized and minority groups in Uganda through advocacy, offering legal aid, and providing capacity building. Its latest August report on monthly advocacy, violence and other human rights abuses based on sexual orientation or gender identity since the Anti-Homosexuality Act took effect shows anti-LGBTQ violence remains rampant, while evictions and arrests continue to drop.
The report states that a total of 56 human rights violations were recorded in August, versus 72 cases in July.
Of the 56 cases, 20 cases (35.7 percent) were based on sexual orientation or gender identity, versus 34 cases (41.2 percent) in July. The number of also reported victims also dropped from 40 people in July to 24 people in August. The 20 cases targeting LGBTQ people involved violence and threats (10), eviction from housing (nine), and one arrest.
Uganda’s Women Human Rights Defenders Network welcomed the commission’s inaugural meetings with HRAPF and SIPD, and asked the state-funded rights body to continue holding regular dialogues to help “create an enabling environment for SOGIESC (sexual orientation and gender identity and expression.)”
Wangadya’s comments coincided with a protest outside Uganda’s Permanent Mission to the U.N. in New York that a group of activists organized.
The World Bank Group in August 2023 suspended new lending to Uganda in response to the Anti-Homosexuality Act. The activists who organized the protest demanded the World Bank not resume loans to the country.
Africa
Anglican Church of Southern Africa rejects blessings for same-sex couples
South Africa’s Inclusive and Affirming Ministries criticized resolution
The Anglican Church of Southern Africa has rejected a proposal that would have allowed bishops to bless couples in same-sex unions.
Archbishop Thabo Makgoba in April urged the Provincial Synod, the ACSA’s highest decision council, to consider offering blessings for couples in same-sex relationships.
The Church of England, which is the ACSA’s parent church, on Dec. 17, 2023, announced it would allow bishops to bless couples in same-sex unions. Since the resolution, however, several churches under the Church of England have not implemented it.
In response to proposals to the Synod from the Right Rev. Raphael Hess, bishop of Saldanha Bay in South Africa, who is the first within the ACSA to approve blessings for couples in same-sex unions after the Church of England’s resolution, and the Right Rev. Stephen Diseko, dean of the province and bishop of Matlosane, which is also in South Africa, the Provincial Synod in a Sept. 25 press release said marriage is between one man and one woman for life.
Makgoba before the Synod said the church needed a deeper understanding on the prospects of the LGBTQ community within the ACSA.
“Since Provincial Synod 1989, we have been trying to reconcile our understanding of the nature of God with how we minister to LGBTQI+ members in our pews,” he said. “Have we listened to and adequately sought reconciliation with one another on providing appropriate pastoral care to loving faithful couples in same-sex civil unions? What is this Provincial Synod, 35 years later, going to resolve beyond flowery words?”
“In my past 16 years, I have relied for guidance on such matters on, in no particular order, theological advisers, the Canon Law Council, the Southern African Anglican Theological Commission, Safe and Inclusive Church, the Anglican Board of Education, the Synod of Bishops, Scripture of courses, and on the lived experiences of our parishioners in such unions and relationships,” added Makgoba.
Inclusive and Affirming Ministries, a South African LGBTQ rights group, said it was deeply disappointed over the Provincial Synod’s decision.
“This decision, along with the rejection of a set of prayers drawn up by bishops for providing pastoral ministry to members in civil unions, feels like a missed opportunity to move toward a more inclusive and compassionate expression of faith,” said the organization.
Inclusive and Affirming Ministries also said the decision to withhold blessings and deny prayers of pastoral care to those in civil unions will further marginalize LGBTQ people.
“Through our work, we also know that religious-instigated forms of hostility meted out against LGBTIQ+ people have been the root cause of the perpetuation of violence, hate speech, and hate crimes,” said the group. “The Synod’s choice to move away from this compassionate path suggests that much work remains to be done in the journey toward full inclusion.”
Inclusive and Affirming Ministries nevertheless commended Hess and Diseko for bringing their proposal to the Synod.
“The theological insights offered by Bishop Hess and Bishop Diseko during the debates were grounded in love, respect for conscience, and the universal recognition of human dignity,” said the group. “We remain hopeful and committed to fostering spaces where LGBTIQ+ individuals feel affirmed, supported, and welcomed in their faith communities. We will continue to advocate for pastoral care and recognition of the diversity of sexual orientation within the church and other faith communities.”
Four countries — Eswatini, Lesotho, Namibia, and South Africa — and St. Helena, a British overseas territory, comprise ACSA with more than three million parishioners.
South Africa and St. Helena are the only jurisdictions within the ACSA that fully recognize the rights of LGBTQ people.
The Namibian Supreme Court in 2023 ruled the country must recognize same-sex marriages legally performed elsewhere. The country’s government in July appealed a ruling that overturned an apartheid-era sodomy law.
Uganda
Activists urge the World Bank not to resume lending to Uganda
Country’s Anti-Homosexuality Act signed in 2023
A group of activists who organized a protest outside Uganda’s Permanent Mission to the U.N. in New York on Thursday demanded the World Bank Group not resume loans to the country.
The World Bank in August 2023 suspended new lending to Uganda in response to the country’s Anti-Homosexuality Act that President Yoweri Museveni signed.
“The law needs to be struck down and repealed. Hard stop,” acting U.S. World Bank Executive Director L. Felice Gorordo told the Washington Blade during a March 27, 2024, interview at his office in Washington. “We continue to advocate for that.”
Thursday’s protest coincided with the U.N. General Assembly that began earlier in the week in New York.
A press release the activists issued before the protest notes the World Bank “recently started testing a package of ‘mitigation measures’ to determine if discrimination is taking place.” The Council for Global Equality, the Human Rights Campaign, Immigration Equality, Outright International, Sexual Minorities Uganda, and Health GAP are among the more than 100 LGBTQ rights organizations from around the world that urged World Bank President Ajay Banga in a Sept. 16 letter not to restart lending to Uganda.
“We are writing to you from Uganda and around the world now because we are alarmed by the World Bank’s plan for mitigation measures in Uganda,” reads the letter. “The World Bank has announced that it will be testing the effectiveness of ‘mitigation measures’ from July-September 2024 and that the World Bank will restart lending if they decide the measures are effective in protecting LGBTQ+ people from discrimination.”
Richard Lusimbo, director general of the Uganda Key Population Consortium, in the press release said the World Bank’s “so-called ‘mitigation measures’ are a façade, designed to provide the illusion of protection.”
“They rely on perpetrators of discrimination — the government of Uganda — to implement the measures fairly,” he said. “How can they be taken seriously?”
A World Bank spokesperson on Friday responded to the Washington Blade’s request for comment about the protest.
“The World Bank cannot deliver on its mission to end poverty and boost shared prosperity on a livable planet unless all people can participate in, and benefit from, the projects we finance,” said the spokesperson.
The spokesperson referred the Blade to an Aug. 8, 2023, statement that announced the suspension of new loans to Uganda.
“Immediately after the law was enacted, the World Bank deployed a team to Uganda to review our portfolio in the context of the new legislation,” reads the statement. “That review determined additional measures are necessary to ensure projects are implemented in alignment with our environmental and social standards. Our goal is to protect sexual and gender minorities from discrimination and exclusion in the projects we finance. These measures are currently under discussion with the authorities.”
“We will not propose any new public financing for Uganda to our board until we are satisfied that additional mitigation measures are in place,” the spokesperson told the Blade on Friday. “These mitigation measures have been designed to ensure beneficiaries of bank-financed projects are not discriminated against and receive equal access to services.”
One such mitigation measure is “stakeholder engagement” that, among other things, seeks to strengthen “consultations to detect instances of exclusion or discrimination (do-no harm safety.)” Another specifically highlights “labor and working conditions” and focuses on the need for “training on inclusion and non-discrimination for borrowers (e.g., contractors and sub-contractors) and mobilization of communities” and including “provisions of non-discrimination in contracts.”
The World Bank has said the Ugandan government has agreed to the mitigation measures.
Clare Byarugaba of Chapter 4 Uganda said there “can be no business as usual between the World Bank and the government of Uganda while this law remains in force.”
“We are gravely concerned that President Banga is turning his back on us, and breaking his commitments to ensuring non-discrimination,” she said.
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