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The long exhale to recognizing same-sex unions in Namibia

May 16 ruling a landmark moment for LGBTIQ+ rights

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Litigants Sillers-Lilies, her wife, and Danny Digashu pictured outside the Namibian Supreme Court. (Photo courtesy of Bradley Fortuin/Southern Africa Litigation Center)

The Supreme Court of Namibia on May 16, 2023, issued a judgment recognizing same-sex unions of two non-nationals after they were denied immigration status by the Namibian government.

The story of Daniel Digashu, a South African national, and his family challenging the decision of the Namibian government denying him immigration status based on his same-sex marriage to his Namibian husband is just one of the many ways African governments continue to oppress and erase queer existence.

In 2015, Digashu married his partner Johann Potgieter in South Africa, where same-sex unions have been legal since Nov. 14, 2016; this, however, is not the case in Namibia. In 2017, after he and his family relocated to Namibia, Digashu applied for a work permit but got rejected by the Ministry of Home Affairs and Immigration based on his same-sex relationship status. The social inequality many LGBTIQ+ people face daily, and the lack of recognition and protection of LGBTIQ+ rights make them more vulnerable to stigma, discrimination and exclusion. Denying LGBTIQ+ people the right and the opportunity to marriage and family life has significant implications on their mental, emotional and overall well-being. 

Heterosexual marriage is widely and legally recognized in Namibia and is often seen as the fundamental foundational family institution in society, including the church. The mainstream practice of marriage is deeply rooted in traditional, cultural and religious beliefs and practices. Marriage is not only a union between individuals but also a union between families and even different communities.

The denial to recognize Digashu and Potgieter’s marriage had deprived them of a chance and a right to have a family, a community and a sense of belonging in society. The couple has been in and out of court since 2017, when they approached the High Court after several unsuccessful engagements with the ministry.

On March 20, 2021, the High Court heard the case and dismissed the matter on Jan. 20, 2022, citing that they cannot legally overrule a previous judgement by the Supreme Court, which found that same-sex relationships are not recognized under the Immigration Control Act of Namibia.  

Constitutional violation of human rights

The refusal of the recognition of same-sex unions is an infringement on several fundamental human rights recognized and protected under regional and international human rights instruments — including the Constitution of Namibia. Denying the recognition and protection of LGBTIQ+ marriage and family violates their rights to dignity, liberty, privacy and protection under the law. Such human rights violation is also discriminatory and violates the constitutional right to non-discrimination, equality before the law and freedom of expression based on one’s sexual orientation, gender identity and gender expression. Recognizing same-sex marriage ensures that LGBTIQ+ people have the same legal protections and rights.  

If it pleases the court 

In its 2022 judgment, the High Court of Namibia 2022 made favorable pronouncements noting the need to recognize same-sex relationships and that LGBTIQ+ people must be protected from discrimination. The court stated that: “Homosexual relationships are, without doubt, globally recognized, and increasingly more countries have changed their laws to recognize one’s right not to be discriminated against based on one’s sexual orientation. It is time to recognize that homosexuality is part and parcel of the fabric of our society and that persons — human beings — in homosexual relationships are worthy of being afforded the same rights as other citizens.”  

Both the High Court and the Supreme Court pronounced that the values, freedoms and democracy that Namibia was founded on have no place for discrimination and the violation of human rights. Everyone, including LGBTQI+ people, has the right to dignity, equality and protection under the law. This call for recognition by the courts is a significant victory for Namibia’s LGBTIQ+ community and advocacy.  

The Supreme Court went on to say that the “court has made it clear that this recognition of the equal worth of all human beings is at the very root of the Constitution and that this is ‘further echoed and implemented in various articles of Chapter 3, and others of the Constitution.’ The value attached to dignity is at the very heart of our constitutional framework and fundamental to it as a value of central significance. Although it is entrenched as a self-standing right in Art 8, it relates to the protection of other rights and in particular, the right to equality.”

Colonial remnants and state-sponsored LGBTIQ+-phobia 

To understand the continuous exclusion of LGBTIQ+ groups in progressive civic developments, it is essential to understand the impact and role that colonial laws have played in shaping the perception, attitudes and legal status of LGBTIQ+ people in society.

Colonial laws were discriminatory and repressive, resulting in the “othering” and, ultimately, the existence of vulnerable and marginalized groups. These laws were based on conservative religious and cultural values prevalent in Europe at the time and criminalized groups based on their gender, race, ethnicity and even sexual orientation and gender identity. Such laws continue to be in practice worldwide, including in Africa.

Like many other African nations, Namibia has an unfavorable history regarding recognizing and protecting LGBTIQ+ people. Identifying as lesbian, gay, bisexual or transgender is not illegal in Namibia. However, the country does criminalize consensual same sex-sexual activities between people of the same gender in terms of its Roman-Dutch common law. 

These provisions are part of what was inherited from colonial laws during colonization and into the new constitution. Such laws continue to sideline LGBTIQ+ people, as they face daily stigma, discrimination and violence, including inaccessibility to healthcare, education, employment, and housing.

In December 2020, the African Court on Human and Peoples’ Rights found that vagrancy laws or bylaws in nearly every country in Africa discriminate against marginalized and vulnerable populations, including women, children, people with disabilities, LGBTIQ+ people and others. Namibia is no exception in adopting such laws as the Roman-Dutch common laws criminalize consensual same-sex sexual relations. This imprint on the State still upholding oppressive colonial laws regarding LGBTIQ+ rights is part of why LGBTIQ+ people and families face daily exclusion. Consensual same-sex relations are still criminalized in Namibia. The repressive and colonial legislation still engraved in Namibia’s laws provides many challenges for same-sex couples and LGBTIQ+ families, like Digashu and Potgieter, and many other same-sex couples seeking legal recognition status in Namibia.

Regardless of their sexual orientation, gender identity and gender expression, everyone should have social, economic and legal stability and equal opportunities. Still, discrimination against LGBTIQ+ people is a significant barrier to full social and legislative inclusion. 

Same-sex relationships are currently criminalized in 32 African countries, with the death penalty in three African states if convicted and found guilty. 

Namibia, formerly known as South West Africa, was a former colony of Germany and later came under the authority of South Africa. Namibia gained independence on March 21, 1990 and celebrated its 33rd independence anniversary on March 21 this year. The constitution of Namibia came into being when the country gained independence. Namibia’s Vision 2030 concerns itself with the population concerning their social, economic and overall well-being and that all people enjoy high standards of living, good quality of life and economic and overall well-being and that all people enjoy high standards of living, good quality of life, and have access to quality social services. All of these aspirations translate into equity, equality and respect for human rights for all people, regardless of one’s social standing. By 2030, Namibia aspires to be a just, moral, tolerant and safe nation with legislative, economic and social structures in place to eliminate marginalization and ensure peace and equity between of all people of different ages, interests and abilities. 

The evolution of society 

Society is evolving and becoming increasingly aware of its rights and existence. In advocating and asserting their rights, communities realize that such common laws are outdated and contribute to the discrimination faced by vulnerable groups. Colonization fostered environments in which such rules were applied in policy and practice to deter, conceal and repress freedoms of expression, identity and association of groups that did not fit the colonial setting. Such groups were made to feel inferior and less valuable to society, leading to segregation practices such as apartheid, tribalism, classism and discrimination and exclusion of sexual and gender minorities.

In a modern-day democratic, independent state like Namibia, colonial remnants are still widely evident in specific laws and policies, so people like Daniel and Johan, and others, must seek justice from the courts to validate their relationship and belonging. There needs to be a correlation between the legislation and the vision that the country is working towards. 

The Bill of Rights is in place to protect and promote the fundamental human rights of Namibians and promote equality before the law and the need for fair, just and speedy court processes. The constitution promotes the rights to liberty, respect for human dignity, equality and freedom from discrimination regardless of a person’s sex, race, or social or economic status association, and even the right to marriage and having a family between same-sex spouses. The blatant denial of the recognition of same-sex marriages by the State violates the right to dignity. It amounts to multiple layers of discrimination by the State, which contrasts with the constitution of Namibia.  

Powering forward

Despite these challenges, there have been continuous efforts by LGBTIQ+ advocates and allies to push for greater recognition and acceptance of LGBTIQ+ individuals in Namibia. These efforts include taking an intersectional advocacy approach that is results-based. There is still a long way to go to achieve full equality and protection for LGBTIQ+ individuals in Namibia. In the long exhale process, Digashu has found public support and joined LGBTIQ+ human rights defenders to continue raising awareness and educating the public on human rights and the challenges faced by LGBTIQ+ people. The Digashu matter highlights the need for LGBTIQ+ inclusion and acknowledgement. In its judgment, the Supreme Court noted the need for social and legislative inclusion of LGBTIQ+ persons in Namibia. 

Bradley Fortuin is the LGBTIQ+ Program Officer at the Southern Africa Litigation Center and is social justice activist with over 10 years of experience in program design and strategic management, focusing on developing, implementing and strengthening LGBTIQ+-led movements.

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Opinions

Urgent concerns arise when congressional staff face ethics investigations

We need safeguards to mitigate risk of unfair outcomes

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Rep. Marjorie Taylor Greene (R-Ga.) (Washington Blade file photo by Michael Key)

Congressional staff tend to avoid engaging in conduct that could reflect poorly on the members they represent or that which would otherwise bring them out from behind the scenes and into the spotlight.

Last week, however, was the second time in which I broke a story about a chief of staff on Capitol Hill who found himself the subject of a complaint to the U.S. House Ethics Committee, the body whose primary responsibility is investigating reports of unethical and unlawful conduct by America’s elected representatives.

In the first, Marjorie Taylor Greene filed a report against Democratic Rep. Jake Auchincloss’s top aide because he had placed stickers over a transphobic sign that the far-right Georgia congresswoman had displayed outside her office. 

The second complaint came from an official with the Biden-Harris administration over an especially combative and anti-trans email that was sent by the highest-ranking deputy in a West Virginia Republican’s Congressional office.

The two cases are not otherwise analogous. As the emissaries of lawmakers who are responsible to their constituents, staff should be held accountable for out-of-bounds behavior like sending offensive emails to harass colleagues on Capitol Hill or in the federal government. 

By contrast, decorating a poster in the Longworth House Office Building without permission is hardly a crime that should be escalated to the Ethics Committee, particularly not when the poster is offensive to members of a marginalized community and was hung in the first place to provoke a colleague across the hall who has a trans daughter.

If a monthslong probe exploring whether a career Hill staffer had brought discredit upon the House of Representatives with his stickers was not absurd enough, it was kicked off by none other than Marjorie Taylor Greene, who has been guilty of that charge virtually every day since she was elected. (Recall, for instance, that she has called for violence against her political opponents, including by publishing a video on social media in which she said then-House Speaker Nancy Pelosi deserves the death penalty.)

A member of Congress wields a tremendous amount of power relative to even the seniormost Capitol Hill staff, a fact that was brought into sharp relief for Auchincloss’s chief of staff as he sought to defend himself against not just the committee’s investigation but also an affidavit by the Capitol Police in support of an arrest warrant along with threats and harassment so severe that his home was monitored by law enforcement.

The House Ethics Committee declined to comment when I reached out last week to confirm receipt of the complaint filed against the GOP staffer, just as they had refused to provide information about the status of the case initiated by Greene’s report.

The committee’s Senate counterpart is even more of a black box.

An article by the Campaign Legal Center, a nonpartisan government accountability group, notes that in the recent indictment of New Jersey Democratic Senator Bob Menendez, “the shocking details revealed by the allegations seemingly had no end.”

The evidence against him was sufficiently flagrant and longstanding, the article argues, to “beg the question: Is the Senate incapable of finding and rooting out potential corruption before it becomes a crime?”

Part of the problem, according to CLC, is that the Upper Chamber’s ethics committee provides no means by which a complaint can be seen through to its investigation and resolution. The public knows very little about what the committee does, perhaps because the committee does very little: a study in 2023 found that none of the 1,523 reports that were filed over a period of 15 years resulted in any formal disciplinary sanctions.

Obviously, full transparency is impossible when sensitive information must be kept confidential to protect the integrity of an investigation. However, and especially if we are going to continue seeing complaints against Congressional staff rather than the lawmakers they serve, the committees should provide more insight into their processes and decision making.

Measures could include safeguards designed to mitigate the risk of unfair outcomes when investigations are brought by members of Congress and target those who have far less power. A mechanism requiring the investigators to share more information about cases under their review, to the extent possible, would also be wise — because even when the alleged conduct by a staffer may warrant a complaint, time and resources might be better spent rooting out misconduct by members of Congress, which is almost always far more consequential. 

We should also contend with the question of whether ethics committees are ever the appropriate place to explore and adjudicate allegations against staffers, since members are fully capable of enforcing the rules in their offices. 

As demonstrated by the long and tortured process through which George Santos was finally booted from Congress, getting rid of an elected lawmaker is far more difficult than, say, firing a chief of staff. 

Ultimately, perhaps the right question is: how can we hold elected representatives to a higher standard such that they model good behavior for their employ as well as for their constituents and Congressional colleagues?

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Opinions

Biden must be more direct when talking to young people

Educate them about futility of third-party candidates

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President Joe Biden (Washington Blade file photo by Michael Key)

President Biden is doing a great job. But reality is, some young people are wavering in their support. I suggest when talking to young people, the president be more direct. What prompted me to write this was reading what some Morehouse College students are saying. Here is a suggested short speech.   

“I want you to know how honored I am for the opportunity to speak with you today. I will speak from my heart, and be very direct. I know you have disagreements with me. Some of you may even think I am actually too old to be president. But I am a candidate for reelection, because I believe I can still make a difference. I know you are very smart. You know only two candidates running have a chance to win. The next president will be either Donald Trump or me. 

You must figure out what issues are the most important to you. Then determine which one of us will be better for your future. Do the research on all the issues you care about. Recognize, no candidate is perfect, surely, I am not, but then no person is. I know many of you care about issues including climate change, student debt relief, women’s rights, LGBTQ rights, and civil rights. Issues like how the United States deals with the Israel/Hamas war, inflation, voting rights, abortion. Donald Trump and I disagree on how to handle each of those issues. We have vastly different views of the world. I believe the United States has a responsibility to lead. Our military, and our economy, are both the strongest in the world. We cannot hide, as he likes to say, behind the slogan ‘America First.’ We cannot close our eyes, and our borders, and pretend what happens in the rest of the world doesn’t impact us. 

I believe we must deal with the Iran-China-Russia axis. We must support Ukraine and continue sending weapons to help them win. If they do, we can keep our young men and women off the battlefield. Remember, we aren’t sending money, but weapons, which are made here, providing high-paying jobs to our own citizens. Some of you have issues with how I have dealt with the Israel/Hamas war. While I support Israel, I do hear you, and will do everything I can to move toward a free Palestinian state. Trump will not. He even moved the U.S. embassy to Jerusalem, to make that point. I am pushing Israel to change its tactics, to protect the innocent women and children, in Gaza. We must do that.

I know many of you want more progress on student debt forgiveness, on fighting climate change, protecting a woman’s right to control her own healthcare and body, and equality for the LGBTQ community. You want to see an end to the structural racism in our country. You must know by my actions that I share those goals with you. I also share the feeling all this is not happening fast enough. But you are all smart. You know our government was formed with a system of checks and balances; three branches of government — legislative, judicial, and executive. While I may want to wave a magic wand to make these things happen, no one can. However, I commit to you, I will fight for them every day. 

Some of you may be thinking, ‘Third-Party’ candidate. I ask you to remember, no third-party candidate has won since 1856, and our structure of the two-party system tells you one cannot win in 2024. In fact, for 36 years, none has ended up winning more than 5% of the vote. Then remember a few facts about Trump. He was found liable for sexual abuse. He has shown by words and actions, he is a racist, sexist, homophobe, who is also a climate change denier. He opposes student debt relief. He also tried to stage a coup after losing the last election. 

Again, like it or not, it’s either me or him. And again, while you may think I am too old, remember, he is my age. If you intend to vote for Trump, that is of course your choice. But if you don’t want him, and his MAGA cult, controlling your future, your choices are to stay home, vote for a third-party candidate, or vote for me. Two of those choices will help elect Donald Trump. So, I ask respectfully, after you do the research, that you give me your vote. Again, I am not perfect, but I will never stop working to make your, and your family’s, life better. I will always work for a more just, and safer world, for all of us.  

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Commentary

To comply or not to comply is not the question

Implementation of pro-LGBTQI+ rulings in Botswana and Namibia is unsatisfactory

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(Washington Blade photo by Michael Key)

Over the past five years, the highest courts in Namibia and Botswana have made significant decisions in favor of minority groups’ human rights through favorable judgments and court orders. However, the implementation of these orders related to the rights of LGBTQI+ in Botswana and Namibia has not been satisfactory so far. 

In 2016, the Botswana Court of Appeal ordered the Registrar of Societies to register the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) after they had been denied registration based on the criminalization of same-sex sexual conduct. In 2017, the High Court of Botswana pronounced that denying a transgender man legal gender recognition undermines their dignity and humanity and ordered the Ministry of Home Affairs to change his identity documents from female to male. In 2021, the Court of Appeal in Botswana decriminalized consensual same-sex sexual conduct. In May 2023, the Supreme Court of Namibia ordered the government to recognize same-sex unions concluded outside Namibia, where same-sex marriages are legal in terms of the Immigration Act. While all these cases constitute landmark cases in securing and guaranteeing the rights of LGBTIQ persons, there is a growing trend of non-implementation when it comes to such judgements.

Government officials have partially or selectively implemented or completely disregarded the court decisions. In the LEGABIBO registration case, the Botswana Court of Appeal found that it is unconstitutional to deny registration under the assumption that LGBTQI+ are not recognized in the Bill of Rights and will offend the morality of the nation. The court found that LGBTQI+, like any other citizen or group of people in Botswana, have the right to freedom of association, expression and assembly, and issued an order for LEGABIBO to be registered, an order that was fulfilled promptly. However, seven years later, in March 2024, an LBQ group’s efforts to register are met with sentiments similar to those before the LEGABIBO jurisprudence. Senior public officials resisted the highest court decision to register this new group. Although their reasons are not stated as clearly as LEGABIBO rejection, government officials are still surreptitiously blocking the registration of LGBTQI+ organizations. 

Similarly, we have observed the selective application technique unfolding in legal gender recognition cases. In this case, the government officials have interpreted this as a single order that only applies to the applicants and not “all persons.” According to anecdotal evidence based on the experiences of individuals who sought legal gender recognition, they are instructed to acquire individualized court orders, a complete misinterpretation of the court’s instructions, burdening the courts to issue duplicate orders. This selective interpretation is a covert move by government officials to undermine judicial decisions and transfer the responsibility and burden of implementation to resource-constrained individuals, limiting access to justice. What is also curious is why the court system does not address repeat applications on the same issue. 

With the decriminalization court order, the attorney general acted in contempt of the judgment when he, instead of scrapping Sections 164 (a) and (c), blatantly ignored the court order and put a bill before parliament for debate. The highest court in Botswana had made a carefully considered decision to decriminalize, as indicated by a statement from SALC (Southern Africa Litigation Center) and by many contributors to this issue; there is no need to debate; the court has decided.

In Namibia’s case, compliance with the court order means recognizing foreign partners in same-sex marriages with their Namibian partners as spouses, thereby issuing them an immigration status that allows them to reside and work in Namibia. Despite the commitment by the Ministry of Home Affairs to comply, government Officials still refuse to respect the Supreme Court ruling, as indicated by Mr. Digashu’s experience: 

“In one of my many visits to the immigration offices, the officer informed me that the court order was only meant for the couples directly engaged in the court case, unaware that I was one of those couples. I got the impression that the immigration officials have adopted a dishonest tactic to deter other same-sex couples, letting them believe that the judgement does not protect them.”

One of the most significant contributors to non-compliance is the media. The media reports on the Supreme Court decision on the Digashu/Seiller-lilies matter ran with the sensational headline “Supreme Court gives legal status to same-sex marriages,” misinforming the public and fueling negativity. Misinformation affects not only the litigants and community members but also feeds the already hostile public attitudes towards LGBTQI+ persons. Members of parliament and religious communities put pressure on government officials. Unfortunately, parliament responded with a marriage bill that contradicted the judgment, Instead of clarifying what the ruling means and whom it affects. Public officials reflect legislators’ sentiments, disregarding principles of democracy, the rule of law, and justice for all, which are clearly stated in the constitution, and further undermining the independence of the judiciary. 

These are only a few of the many court orders that government officials have disregarded to the disadvantage and inconvenience of the minority who went to court to seek redress. For example, in the case of Mr. Daniel Digashu, he is given a visitor’s visa every time he leaves the country, which means he is forced to exit the country at its expiration date or face the wrath of the law. The cost of frequent travel and the personal emotional toll on himself and his family is insurmountable. Let alone constant dealings with questions, often followed by ridicule from immigration officials.

The question, therefore, is, what must happen to government officials who disregard court orders? 

The chief justice in Kenya offers a solution to this conundrum. Recently, the chief justice observed that senior government officials are guilty of defying court orders and suggested remedies such as impeachment of individual officers responsible. Botswana and Namibia must take a leaf out of that book.   

Of great concern is also that government officials are not transparent about the limitations of the court orders to enable the litigants and beneficiaries to seek clarification from the courts, nor are they open to engaging with civil society and affected communities to improve compliance. Are the court orders vague and, therefore, challenging to implement? Being transparent about implementation constraints will go a long way in guiding civil society on how they can support the government. Even in their resource-constrained status, CSOs must continue to monitor compliance and return to the courts for enforcement, including publicizing non-compliance in the media for public engagement. 

In conclusion, the rule of law requires that all court decisions be implemented promptly, thoroughly and effectively. The government has no choice whether to execute or not execute the court orders. 

The authors are consultants at the Southern Africa Litigation Center (SALC). SALC promotes and advances human rights and the rule of law in Southern Africa, primarily through strategic litigation and capacity-strengthening support to lawyers and grassroots organizations.

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