The International Commission of Jurists (ICJ) has welcomed the Supreme Court of Namibia’s recent landmark ruling ordering the government to interpret the country’s immigration laws so as to recognize same-sex marriages concluded abroad. Nonetheless, the organization is gravely concerned at the country-wide protests against the human rights of lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI+) people and against the ruling, including through a petition calling for the removal of the judges responsible for it and for the Minister of Justice to be fired. Such public attacks on judges threaten judicial independence and, in turn, undermine the rule of law.
“The ICJ strongly emphasizes the importance of judicial independence in ensuring the rule of law. When the integrity and independence of judges are compromised, access to justice is severely undermined. Calls for the removal of judges – who simply carried out their duties as judicial officers – in response to a judgment that upholds both domestic and international human rights law are very concerning”, said ICJ Africa Regional Director Kaajal Ramjathan-Keogh.
On 16 May 2023, Namibia’s Supreme Court handed down its judgment in Digashu and Another v GRN and Others. The decision, delivered by Chief Justice Shivute, held that the denial of immigration status to non-Namibian spouses in same-sex marriages contracted abroad is unconstitutional. It went on to set aside a High Court decision of 20 May 2021 and recognized individuals who had contracted same-sex marriages abroad as “spouses” as per section 2(1)(c) of Namibia’s Immigration Act No. 17 of 2006. Ordering the Government of Namibia to recognize same-sex marriages concluded outside Namibia, the Supreme Court held, “[…] that the approach of the Ministry to exclude spouses, including the appellants, in a validly concluded same-sex marriage from the purview of s2(1) of the Act infringes both the interrelated rights to dignity and equality of the appellants.”
Following the landmark decision, a group of protestors calling themselves “the Coalition of Churches and Organisations” submitted a petition calling on Hage Geingob, the country’s President, to direct the Judicial Service Commission to investigate the four judges who delivered the judgment in Digashu, with a view to dismissing them, and to sack Yvonne Dausab, the Justice Minister. The group claims that the judgment amounts to gross negligence and a failure to administer justice and uphold the Constitution. The group further alleges that the judiciary “should refer matters of morals and customs to Parliament”.
“The right to an independent and impartial tribunal is an integral part of the right to a fair trial. Judges play a critical role in ensuring access to justice for all persons and rulings, like the Digashu decision, that advance the human rights of LGBTQI+ people. The ICJ stands behind the LGBTQI+ community of Namibia and reminds the government of Namibia of its obligations under domestic and international human rights law to ensure the right to equal protection of the law for all persons, without discrimination”, Ramjathan-Keogh added.
On Friday 2 June 2023, protesters across Namibia demonstrated against the Court’s recognition of same-sex marriages concluded outside the country. In Windhoek, protesters clashed with counter protesters resulting in the arrests of four LGBTQI+ persons. It has been reported that the four individuals were seen waving Pride flags at the protest and, amid the struggle that ensued, were arrested for allegedly disrupting the demonstration. They were not charged with any offence and have since been released.
Through its petition, the Coalition of Churches and Organisations also accused Minister Dausab of not representing “the morals and values of the Namibian people” and called for her removal from office, claiming that she entered into a same-sex marriage in South Africa. The Coalition further claimed that the Minister abused her office to advance personal interests and the interests of LGBTQI+ persons by, among other things, backing attempts to repeal the common law offence of sodomy and by proposing amendments to the draft marriage bill to include same-sex couples. In light of this, the group alleged that the Minister was incapable of representing the Namibian people. Homosexuality is illegal in Namibia under a rarely enforced 1927 sodomy law dating back to when the State was under South African rule. Sodomy is an offence under Roman-Dutch common law. It has been interpreted to apply to sexual activity between men. Additionally, Namibia does not recognize same sex marriages if performed within the State. A draft law on marriage is reportedly being developed.
The Coalition of Churches and Organisations is not the only critic of the Supreme Court’s ruling. Eight traditional leaders from the northern part of the country claimed that the ruling disregards Namibia’s “accepted norms and traditional practices”. Sam Nujoma, the former President of Namibia, agreed with them and condemned same-sex marriage, urging Africans as a whole to be “vigilant against some alien, foreign norms and values,” which are supposedly being forced upon them. Nujoma has long been vocal in his condemnation of the LGBTQI+ community and sharing his homophobic sentiments.
The petition against the four judges and the Justice Minister and the protests against the human rights of LGBTQ+ persons sparked by the Supreme Court’s recent judgment are flagrant attempts to disrupt the independence of Namibian judges; they seek to undermine the ability of LGBTQI+ persons to exercise their human rights and constitute an attack on the rule of law.
The Digashu judgment goes some way towards aligning Namibian domestic law with the country’s international human rights obligations with respect to the human rights of LGBTQI+ persons, but there is still a long way to go. Among other things, in violation of its obligations under the international human rights law and standards, including treaties by which it is bound as a State party, as mentioned above, consensual same-sex sexual activity between men is still criminalized, although a legal challenge to the colonial era criminalization in this context is underway.
For more information, contact:
Kaajal Ramjathan-Keogh, ICJ Africa Director Africa Programme, Kaajal.Keogh@icj.org
Mulesa Lumina, ICJ Africa Legal and Communications Associate Officer, Mulesa.Lumina@icj.org
Background
Namibia is a State Party to a number of international human rights instruments, including the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights (the African Charter). Additionally, Namibia has signed but not ratified the Protocol to the African Charter on and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. In terms of its international human rights obligations, Namibia must uphold the human rights of LGBTI persons, including their rights to life, dignity and equality, non-discrimination, privacy, liberty and security of persons, and ensure that they are protected from discrimination and violence. Namibia is further obliged to ensure the right to fair administration of justice and maintenance of judicial independence.
Together, the Yogyakarta Principles and the Yogyakarta Principles Plus 10 are an authoritative affirmation of the human rights of LGBTI persons and provide guidance on the obligations of States as regards the application of international human rights law and standards in relation to sexual orientation, gender identity, gender expression and sex characteristics. In addition, Resolution 275 of the African Commission on Human and Peoples’ Rights on Protection against Violence and other Human Rights violations against Persons on the basis of their real or imputed sexual orientation or gender identity reiterates that the Africa Charter protects the human rights of all persons, including LGBTI persons, to non-discrimination, equality, life, dignity and freedom from torture. The resolution also calls on all States to put in place measures that will end violence and discrimination against LGBTI persons.
In addition, “The 8 March Principles for a Human Rights-Based Approach to Criminal Law Proscribing Conduct Associated with Sex, Reproduction, Drug Use, HIV, Homelessness and Poverty”, recently published by the ICJ, offer a clear, accessible, and operational legal framework and practical legal guidance for a variety of stakeholders, including judges and legislators, on the application of criminal law to conduct associated with consensual sexual activities, such as consensual same-sex sexual relations (Principle 16); as well as on the criminalization of sexual orientation, gender identity and gender expression (Principle 18); and sexual and reproductive health and rights (Principle 14). In particular, Principle 16 on consensual sexual conduct, among other things, states: “Consensual sexual conduct, irrespective of the type of sexual activity, the sex/ gender, sexual orientation, gender identity or gender expression of the people involved or their marital status, may not be criminalized in any circumstances. Consensual same-sex, as well as consensual different-sex sexual relations, or consensual sexual relations with or between trans, non-binary and other gender- diverse people, or outside marriage – whether pre-marital or extramarital – may, therefore, never be criminalized.”
