This pride month brought a small dash of relief for Africa’s much-persecuted queer community. On June 21, the High Court of Namibia declared two colonial-era laws that criminalised same-sex acts between men unconstitutional.
Even though convictions under the laws on sodomy and unnatural sexual offences were relatively rare in Namibia, they have perpetuated discrimination against the queer community, forcing them to live in fear of arrest.
The Namibian government can appeal the High Court order within 21 days.
Ruling in the case of Dausab vs The Minister of Justice, the Court held that in a democratic society with a Constitution that promises the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family and the pursuit of individual happiness, it is not reasonably justifiable to make an activity criminal just because a segment – perhaps even the majority – of the citizenry consider it to be unacceptable.
The court also said that the criminalisation of anal sexual intercourse between consenting adult males, in private, is outweighed by the harmful and prejudicial impact it has on gay men. As a consequence, it was not reasonably justified to retain it in Namibian law. The court held that the impugned laws unfairly discriminated against homosexual men and were unconstitutional.
The Namibian High Court accepted the arguments of activist Friedel Dausab that laws discriminated against him and other gay men on the basis of sex and sexual orientation. It held that these laws infringed upon his constitutional right to equality, dignity, privacy, freedom of expression and freedom of association.
The Namibian Court also agreed with a 2000 ruling by the South African Constitutional Court that struck down similar laws. In that ruling, the South African court had held that the provisions criminalising homosexuality could harm an individual’s ability to achieve “self-identification and self-fulfillment” and also extend to society. “The harm also radiates out into society,” the South African court had said, noting that this gives rise to a “wide variety of other discriminations”.
Rainbow over Africa
Political leaders across African countries have often made blatantly homophobic statements. Zimbabwean leader Robert Mugabe had claimed that homosexuality was “un-African” and a “white disease”. Yahya Jammeh of the Gambia and Yoweri Museveni of Uganda deployed anti-gay rhetoric to widen their political power base and popularity.
In Heterosexual Africa? The History of an Idea from the Age of Exploration to the Age of AIDS (2008), Marc Epprecht explored the historical processes by which a singular, heterosexual identity for the continent of Africa was falsely constructed – by anthropologists, ethnopsychologists, colonial officials, African elites, and most recently, health care workers seeking to address the AIDS – the acquired immunodeficiency syndrome – pandemic.
Epprecht notes that Africans, just like people all over the world, have always had a range of sexualities and sexual identities. However, over the course of the last two centuries, African societies south of the Sahara have come to be viewed as singularly heterosexual. Epprecht traces the many routes by which this singularity and heteronormativity became a dominant culture in Africa.
Author Bernardine Evaristo, in an article busting the myth that African homosexuality was a colonial import, pointed out that the Nzima tribe of Ghana had a tradition of adult men marrying each other, usually with an age difference of about 10 years. Similar to the practice in ancient Greece, Sudan’s Zande tribe had a tradition of warriors marrying boys and paying a bride price, as they would for girl brides, to their parents. When the boy grew up, he too became a warrior and took a boy-wife.
Yet, homophobic attitudes persist.
In contrast to the ruling in Namibia, Uganda’s Constitutional Court in April upheld the country’s Anti-Homosexuality Act of 2023 that allows the death penalty for “aggravated homosexuality”.
Homosexuality remains criminalised in more than 30 of Africa’s 54 countries. The discrimination against queer people in Africa are a sign of the continent’s continuing apartheid.
Faisal C is Deputy Law Secretary to the government of Kerala. Views are personal.
