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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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Commentary

Non-alignment or hypocrisy: South Africa’s non-alignment costing Africa’s human rights discourse

Country must take stronger stance against Uganda’s anti-homosexuality law

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LGBTQ and intersex activists protest in front of the Ugandan Embassy in D.C. on April 25, 2023. South Africa must take a stronger stance against the Anti-Homosexuality Act that Ugandan President Yoweri Museveni has signed. (Washington Blade photos by Michael K. Lavers)

In the past several months, South Africa’s foreign policy has been in the spotlight for essential and existential reasons that significantly impact geopolitics and the continent’s stability. 

The foreign policy for South Africa discussion document by the Department of International Relations highlights the “advancement of human rights and the promotion of democracy” as the pillars on which South Africa’s foreign policy rests. This document emphasizes the role that South Africa is expected to play in the “promotion of human rights and democracy.”

Minister Pandor echoed this document in her 2022 end-of-year remarks

“We will continue with our unwavering position to advocate for a balanced Sustainable Development Program within the human rights framework as underlined in the Vienna Declaration and Program of Action (VDPA). In this regard, South Africa will be one of the chief proponents of a balanced agenda of the HRC, which reflects, among others, the primacy of achieving the realization of the right to development as well as moral human rights issues such as the eradication of poverty and underdevelopment.” 

South Africa has long been known for its commitment to human rights and its leadership in the fight against apartheid. However, its foreign policy continues to be viewed as ambiguous and nonresponsive to developments in African affecting the growth of the continent.

In 2021, President Ramaphosa — as chair of the SADC Organ Troika — committed to a national political dialogue in Eswatini to resolve the political killings in that country. However, the South African government has never followed up or called on the Eswatini government to adhere to its commitment, even as renowned human rights lawyer Thulani Maseko was mercilessly assassinated in January 2023. At the very least, this has not been seen publicly, which would be comforting to those political activists and citizens constantly living in fear in Eswatini. 

On May 29, the president of Uganda enacted the draconian Anti-Homosexuality Act. The new law is a throwback to colonization, where religious fanatism was the basis for the persecution and killing of many Africans. While Africa seems to take the posture of “fighting against imperialism,” it is saddening that this law is the brainchild of American zealots funding hate across Africa, whether it is in Uganda, Ghana, Kenya, Malawi or Namibia. These zealots, the Fellowship Foundation and many others, are well coordinated in their attacks on the judiciary and the African human rights framework, backed by the 75-year-old Universal Declaration of Human Rights.  

In an era where Africa is seen to be taking a stance against imperialism, I shudder to contemplate that hate may be the only imperialist agenda Africa is not actively standing up against. We know the history of petty offences like homelessness and loitering, sedition laws, and anti-LGBTI laws. These are remnants of colonization to keep Africa inferior and the colonial masters superior. Today, the hate continues through repressive and backwards sentiment being paraded as religious values. Uganda’s anti-homosexuality law criminalizes what it calls “aggravated homosexuality” with the death penalty. It would be hard to imagine what “aggravated homosexuality” even means. 

This is another opportunity where South Africa’s posture and foreign policy must be spotlighted. With the growing conversation about the ICC arrest warrant of President Putin, South Africa has reiterated its foreign policy as non-alignment and non-interference. 

However, when the question of human rights and democracy is at play, all must take a stand. This law has been widely criticized by human rights organizations and the international community for violating the rights of LGBTIQ+ individuals and hindering the fight against HIV. It further impedes what Minister Pandor called the “balanced agenda of the HRC,” which speaks to sustainable development within the human rights framework. 

It should be worrying if South Africa continues to maintain a policy of non-alignment and non-interference in the face of the new law in Uganda. While this policy may have its merits, it raises questions about South Africa’s commitment to human rights and its role as a leader in Africa. A foreign policy that neglects the promotion of human rights and democratic principles is hypocritical. On the one hand, South Africa is seen as a leader in promoting LGBTIQ+ rights and has one of the most progressive constitutions in the world regarding protecting the rights of LGBTIQ+ individuals. However, on the other hand, it has failed to take a strong stance against Uganda’s anti-homosexuality law, which is a clear violation of human rights.

By maintaining this policy, South Africa is essentially condoning Uganda’s anti-homosexuality law and undermining the fight for human rights in Africa. This is particularly concerning given South Africa’s leadership role in the African Union and its commitment to promoting human rights and democracy.

South Africa’s foreign policy regarding Uganda’s anti-homosexuality law raises questions about its commitment to non-alignment and human rights in Africa. While non-interference may have its merits, it should not come at the expense of human rights and the fight for equality and justice. 

South Africa must take a stronger stance against Uganda’s anti-homosexuality law and work towards promoting human rights and democracy in Africa.

Melusi Simelane is the Southern Africa Litigation Center’s Civic Rights Program Manager.

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Republicans prove how vile and frightening they can be

Attacks will continue if we don’t defeat right-wing figures everywhere

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

Day after day we see Republicans trying to outdo each other in how vile and frightening they can be. From the fight over the debt ceiling, to their presidential primary, they continue to try to take the nation backwards. 

In the debt ceiling fight, they clearly say, “We will protect the wealthy in our country at all costs, and instead will cut, or eliminate, programs to help the poor.” The far-right wing crazies like Marjorie Taylor Greene (R-Ga.), Matt Gaetz (R-Fla.), Andy Biggs (R-Ariz.), Chip Roy (R-Texas), and Lauren Boebert (R-Colo.), are threatening their own speaker, Kevin McCarthy (R-Calif.), with the loss of his job if he doesn’t go along with what they want. Now that a deal has been cut, we will see how they, and left-leaning Democrats who have been putting pressure on President Biden to reject all Republican demands, will vote. These are facts of life in our nation today. Any person with a shred of decency should be embarrassed. I don’t envy President Biden for what he has to do to keep the nation from defaulting on its debts. The political reality is that he had to give in on some issues. Democrats should not fault him, but rather blame Republicans. 

It is scary when you see what Republicans are doing around the nation with regard to abortion rights, civil rights, and LGBTQ rights. One recent example being Florida Gov. Ron DeSantis proudly signing the bill making abortion only legal until six weeks. There are women who don’t even know by then they are pregnant. Also, it’s time men start understanding how this impacts them. Women need to remind the fathers what their responsibility will be if they both aren’t ready for a child but are forced to have one.

One ignorant parent in Florida complained, and according to politico was able to have “A Miami-Dade elementary school limit some access to Amanda Gorman’s presidential inauguration poem, ‘The Hill We Climb,’ complaining that it contained indirect “hate messages.” This is insanity and the clear result of Trump’s impact on the culture of the nation. He made it OK to once again have hatred spewed from the public square, frightening decent people. 

Like the threats against Target. CNN reported the company was “removing some products that celebrate Pride month after the company and its employees became the focus of a “volatile” anti-LGBTQ campaign. The company told the Wall Street Journal that people have confronted workers in stores, knocked down Pride merchandise displays and put threatening posts on social media with video from inside stores. Some people have thrown Pride items on the floor, Target spokesperson Kayla Castaneda told Reuters. CNN went on to report “Prominent right-wing activists, Republican political leaders, and conservative media outlets, have focused their attention on a women’s swimsuit that was described as “tuck friendly” for its ability to conceal male genitalia. Misinformation spread on social media that it was marketed to children, which it was not.” Again, insanity, promoted by the right wing. The people doing this should be arrested and prosecuted.

It only gets worse as Republican candidates running for president try to outdo each other with anti-LGBTQ rhetoric, trying to improve their poll numbers. DeSantis can tout his “don’t say gay legislation.” Sen. Tim Scott (R-S.C.), a Black man, who says the country is not racist, touts his opposition to marriage equality. Then there is Mike Pence who will quote the Bible to you, claiming it tells us how terrible it is to be gay. 

The Daily News recently reported “Following last year’s more than 220 anti-LGBTQ bills introduced across the country, a poll by The Trevor Project found 71% of LGBTQ youth — and 86% trans and nonbinary youth — said they were negatively impacted by the flurry of proposals to restrict their rights.” They went on to report, “As of May 23, more than 520 anti-LGBTQ bills have been introduced in statehouses across the country, according to the Human Rights Campaign. More than 220 of those specifically restrict the rights of transgender and nonbinary people. These are all Republican bills.

This will continue unabated if we don’t defeat Republicans everywhere. In sharp contrast, Democrats in the Maryland legislature, led by Delegates David Moon (D-Montgomery County) and Luke Clippinger (D-Baltimore County) and State Senator Howard Lam (D-Baltimore and Howard Counties), managed to repeal the states sodomy law and pass gun-control measures.

Republicans will continue to carry out their agenda of hate across the nation unless we say with our votes, “We won’t take this anymore.” The United States is better than this and we will show the world we will not tolerate hate; we will fight it.  

Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist. He writes regularly for the Blade.

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Opinions

Trans rights have reached a crisis point

We should fear DeSantis more than Trump

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Michael Knowles speaks at CPAC. (Screen capture via Vimeo)

Trans rights have reached a crisis point. There’s no other way to say it. 

On March 4, CPAC speaker Michael Knowles plainly stated that “if [transgenderism] is false, then for the good of society, transgenderism must be eradicated from public life entirely – the whole preposterous ideology.”

To liken transness as a mere ideology is problematic on many different counts, but that paled in comparison to Knowles’s need for us to be eradicated. Eradication rhetoric is a genocidal tool, to ask and plead for an entire subpopulation to go away in one fell swoop is murderous and brutal. Genocides begin with this kind of rhetoric, then escalate to dangerous politicians being elected to office, then escalate even more to harsh policy, then escalate yet again when those harsh policies force humans to have to do many things — be locked in a cage, move out of the country, or even detransition, in this case. 

Look no further than what happened at the southern border during Trump’s years in office, when images of migrants and their children surfaced at maximum security facilities, lying on the floor with nothing but a meager blanket and barbed wire surrounding their bodies. 

Indeed, a lot of the CPAC conference was dedicated to engaging in these culture wars — but Knowles’s statement of eradication goes beyond the normal cultural bickering. This is why trans politics are at a dangerous turning point. 

Adding to this chaos are bathroom bills and sports policies that prevent trans high schoolers from accessing the bathroom they need, or playing on the right side of their sports team. 

In conversations with professionals, academics, and friends, I like to mention the fact that Republicans take peoples’ rights away when they notice that those people have gained more freedom. Think of it this way: when I was in high school, in 2010, far fewer trans people were out with their identities. Transness didn’t take a center stage in culture — be it on the left or on the right. And as a result, trans students were only attacked by bullies and in locker rooms, not by state politicians. 

But the rise of Gen Z has witnessed many high schoolers now flouting gender norms, going by nonbinary pronouns, and being proud of their gender variance. Moreover, society is filled with many more trans models and celebrities. When our presence becomes celebrated and known, Republicans will then take the necessary tools to push us back into the closet. 

What’s adding to the concern is the rise of smarter Republican candidates for the 2024 election who have exactly the same feelings of Trump but with higher intellects. Ron DeSantis is an example of a presidential contender who mirrors Trump’s bigotry and policies but is far more targeted and intelligent in his approach to public speaking and politics. Indeed, Democrats should be more afraid of DeSantis than of Trump. 

On an end note, I like to summon an old saying by the late Martin Luther King. “The arc of the moral universe is long but it bends toward justice.” No matter how much cruelty Republicans will put us through, they won’t succeed in the long run. More and more of society is catching up to the fact that trans people deserve respect and fairness. There will come a day when we have to sigh less and less about the state of our rights. 

Isaac Amend (he/him/his) is a trans man and young professional in the D.C. area. He was featured on National Geographic’s ‘Gender Revolution’ in 2017 as a student at Yale University. Amend is also on the board of the LGBT Democrats of Virginia. Find him on Instagram @isaacamend.

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