Namibia: Attorney General defends homosexuality ban

Festus Mbandeka, the Attorney General of Namibia, has described homosexuality as “unacceptable” and “immoral” in a bid to uphold the country’s discriminatory ban on same-sex sexuality.

Mbandeka made the statement in an affidavit submitted to the Windhoek High Court in response to a case lodged by activist Friedel Dausab challenging the constitutionality of the law criminalising sodomy.

“For many Namibians, homosexual conduct is immoral and unacceptable. I deny that the mere existence of the sodomy law promotes the stigmatisation of gay men,” Mbandeka asserted, reported The Namibia.

“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,” he added.

The organisation Sister Namibia said that Mbandeka’s claim about the public’s beliefs on homosexuality was made “without evidence” and argued that, in any case, “majority beliefs cannot deprive a minority of their rights”.

The group added that “we are tired of saying this, but sexual orientation is not a choice.”

“The continued existence of this law cannot be justified”

According to the organisation Namibia Equal Rights Movement (NERM), 64 sodomy arrests were made between 2003 and 2019, although these “offences” were rarely enforced or prosecuted.

“Nonetheless, the existence of the sodomy law underpins and is seen as justifying discrimination against LGBTIQ+ people in Namibia.

“It is also used as an excuse to not introduce public health measures and to remove sexual orientation as a prohibited ground of discrimination from the 2004 Labour Act,” said the group.

In 2021, Namibia’s Law Reform and Development Commission recommended that the government abolish the country’s sodomy law .  The commission said that “The continued existence of this law cannot be justified” as it “interferes with the constitutional and international law rights of individuals in Namibia”.

While a date for a court hearing on the sodomy law challenge has not yet been set, two other major cases relating to LGBTIQ+ rights will be heard in the coming weeks.

On 3 March, the Supreme Court of Namibia will hear a case concerning the same-sex spouses of two Namibians who were denied immigration status because the country does not recognise same-sex marriage.

On 6 March, Namibian Phillip Lühl and his husband will fight for their son’s right to Namibian nationality, also in the Supreme Court. The state has refused to recognise the young boy as Namibian because he was born via surrogacy in South Africa and because the couple’s marriage is not recognised.

Although the High Court granted the child Namibian nationality in 2021, the government appealed the ruling to the Supreme Court.