Acquittal for love
Namibia's High Court declares the colonial sodomy law unconstitutional: a milestone for queer rights in Africa.
On 21 June 2024, the High Court of Namibia declared the colonial-era bans on consensual same-sex sexual acts between men unconstitutional and invalid. The panel of three judges, Nate Ndauendapo, Shafimana Ueitele and Claudia Claasen, found that the laws constituted unjustified discrimination on the grounds of sex and sexual orientation and therefore violated the Namibian Constitution.
Behind the case was Friedel Dausab, a gay Namibian HIV activist who had filed the suit in his personal capacity in 2022. He argued that the laws violated his constitutional rights to dignity, privacy, freedom of expression and freedom of association. The so-called sodomy laws dated from the colonial era and had been retained by Namibia after independence from South Africa in 1990, even though they were declared unconstitutional there shortly afterwards. In practice they were hardly ever enforced, but their mere existence was enough to stigmatise gay men, put them under pressure and deny them legal recognition as equal citizens.
In its judgment, the court held that "the enforcement of the private moral views of a section of the community, which are based to a large extent on nothing more than prejudice", could not justify criminalisation. The reaction of the LGBTQ community was overwhelming: activists who had been waiting for the verdict celebrated outside the court building in Windhoek. The organisation Equal Namibia wrote on its social media channels: "Welcome to the new Namibia. The Namibia of the born-free generation."
As early as July 2024, the Namibian government lodged an appeal with the Supreme Court. The case is still pending. Even so, the ruling of 21 June remains a milestone: it is part of a wave of African court decisions in favour of queer rights and shows that constitutional guarantees can be upheld even against social pressure.