Poor acceptance of LGBTQI+ organisations and people

The landmark ruling in the case Dausab v Minister of Justice (2024) led to a historic shift with regards to  protecting equality of LGBTQI+ persons (see case law section below). Yet for many LGBTQI+ individuals, the ruling has not erased daily struggles with stigma and discrimination. Outside the courtroom, LGBTQI+ individuals still face hostility in schools, workplaces and homes. A 22-year-old student in Windhoek, for example, said that “even simple things like holding a male friend’s hand or openly supporting queer issues feels risky.”

In 2024, the Afrobarometer’s Round 10 survey was conducted about sexuality and religion in Namibia. Although the survey finds that Namibia is one of Africa’s most tolerant countries towards the LGBTQI+ community, negative public attitudes remain strong: only a slim majority of Namibian citizens say they would like or not mind having homosexual people as their neighbours, while nearly six in ten citizens would reject a friend or family member if they were attracted to individuals of the same gender. There is still a large majority of Namibian citizens who strongly oppose same-sex marriage, parenting rights for same-sex couples, and equal rights for those attracted to people of the same gender. Two-thirds of Namibians believe it is impossible to follow their religion while accepting people in same-sex relationships. Only one in four says citizens should tolerate those attracted to the same gender, even if it conflicts with their moral beliefs. Highly religious individuals are less likely to reject homosexual neighbours than non-religious people, though they are equally likely to turn away family and friends who are attracted to others of the same gender.

Violence and harassment

The Supreme Court of Namibia’s recognition of civil unions contracted abroad between same-sex couples in Digashu and Another v Government of the Republic of Namibia (2023) and the subsequent reversal of the judgment via the anti-same-sex marriage bill passed by the parliament in July 2023 have caused a heated debate in Namibia about respect for LGBTQI+ people’s human rights. Since the anti-same-sex marriage bill passed both houses of parliament without opposition, there has been a noticeable increase in violence and greater attacks against the LGBTQI+ community. This bill aimed to amend the Marriage Act 2024 to explicitly define marriage as ‘between persons of the opposite sex’ and prohibit recognition of same-sex marriages performed abroad. 

When LGBTQI+ victims report to police authorities, they frequently face further mistreatment, including ridicule, degrading behaviour, and inappropriate questioning about their sexual orientation or gender identity. One transgender woman who reported being physically assaulted and forcibly expelled from her home was not assisted. Instead of taking her statement, the police officer questioned her about her gender identity and criticised her for wearing a dress. 

In 2024, the Namibia Equal Rights Movement reported at least six brutal murders of LGBTQI+ people. Supporters of the anti-same-sex marriage bill have portrayed the LGBTQI+ community as criminals, as undesirable members of society, and as a separate group that should be treated differently and inhumanely. Some anti-LGBTQI+ activists state that the LGBTQI+ community violates fundamental human rights and should no longer enjoy the protection of human rights.

LGBTQI+ activists have experienced violent cyberattacks, a rise in online harassment targeting, and the frequent scapegoating of the community by politicians in the lead-up to the November 2024 elections.

Discrimination

Namibia lacks statutory protections explicitly prohibiting discrimination based on sexual orientation, gender identity, gender expression, or sex characteristics. LGBTQI+ individuals continue to face discrimination, harassment and stigma, both in society and in their families. Due to the lack of anti-discrimination safeguards, the LGBTQI+ community remains largely unprotected from discrimination in areas such as employment, healthcare, education, housing, and access to services, despite the constitutional guarantee of equality. Transgender women accessing public hospitals report being told “we don’t treat people like you here”.

Many transgender individuals are required to present identification documents that do not correspond with their gender. This often results in daily humiliation, increased vulnerability to violence, and obstacles in accessing education, services, and employment.

Reports from Namibian activists indicate that the police have not afforded LGBTQI+ groups the same freedom of assembly as religious gatherings. OutRight Namibia reported that police authorities generally did not take complaints of violence against LGBTQI+ individuals seriously. Police authorities often ridiculed LGBTQI+ individuals when they reported cases of abuse. Police have also engaged in violent and discriminatory practices towards LGBTQI+ individuals themselves: In the case Cloete v Minister of Safety and Security (2021), a transgender woman was assaulted by an undercover police officer. She was grabbed, dragged to a police van and beaten repeatedly (see case law section below).

Backlash towards LGBTQI+ organisations 

There are several Namibian LGBTQI+ organisations, such as Equal Rights Namibia, Drag Night Namibia, Out-Right Namibia (ORN) and the Trans Intersex Androgynous Movement of Namibia (TIAMON). LGBTQI+ organisations focus on the decriminalisation of same-sex relations and the establishment of stronger legal protections against discrimination based on sexual orientation and gender identity and conduct educational campaigns and workshops to raise awareness and promote understanding of LGBTQI+ issues among society. In many parts of their work, they face backlash for advocating for LGBTQI+ rights, discrimination, social stigma, harassment, threats to personal safety, legal challenges and resistance from conservative anti-rights groups. LGBTQI+ activists have reported that police have not permitted the same freedom of assembly for LGBTQI+ groups as for religious groups.

National case law

Dausab v Minister of Justice (2024) (HC-MD-CIV-MOT-GEN- 2022/00279) [2024] NAHC 331 (21 June 2024)

The applicant, Friedel Dausab, applied for an order to declare the common law offences of ‘sodomy’ and ‘unnatural sexual offences’, along with the statutory provisions that incorporate these offences, unconstitutional. He argued that the laws discriminated against him and other gay men on the basis of sex and sexual orientation, thereby infringing on his constitutional rights to equality, dignity, privacy, freedom of expression, and freedom of association. The High Court of Namibia ruled in favour of Friedel Dausab and held that the sexual activity between men cannot be treated differently from sexual activity between men and women. Under this landmark ruling, consensual sexual activity between adult men in private is no longer a criminal offence in Namibia.

Digashu and Another v Government of the Republic of Namibia (2023), together with Seiler‑Lilles v Government of the Republic of Namibia (2023), (SA 6/2022; SA 7/2022) [2023] NASC 14 (16 May 2023)

The case involved the same-sex couple Johann Potgieter, a Namibian citizen, and Daniel Digashu, a South African citizen. The couple had entered into a valid marriage in South Africa. When Daniel Digashu applied for a residence or work permit in Namibia, the authorities denied the application because Namibia does not recognise same-sex marriages concluded abroad. 

Similarly, Anete Seiler, a Namibian citizen, and Anita Seiler-Lilles, a German citizen, approached the High Court of Namibia after Anita Seiler-Lilles was denied permanent residence based on their marital status in Germany.

Both couples argued that this refusal violated their constitutional rights, particularly with regards to equality, human dignity, and family life.

The Supreme Court ruled that same-sex marriages legally concluded abroad must be recognised for immigration purposes. Foreign partners are therefore considered ‘spouses’ under immigration law. The authorities’ previous refusal was unconstitutional because it treated the couples unequally.

This landmark ruling represents a major step forward for LGBTQI+ rights in Namibia and marked the first judicial recognition of same-sex marriages from abroad under immigration law. However, it does not signify the full introduction of same-sex marriage in Namibia.

Cloete v Minister of Safety and Security (2021) (HC-MD-CIV-ACT-DEL 404 of 2018) [2021] NAHCMD 523 (12 November 2021)

This case involved a transgender woman as the plaintiff who said that after leaving KFC in central Windhoek she was approached by men in civilian clothing who identified themselves as police officers. She was forced into a police vehicle, insulted with transphobic language, beaten during the ride, and then kicked at the police station. She alleged the abuse was motivated by her being transgender and that it caused emotional and psychological trauma, fear, and changes in how she lived and worked afterwards. The version of the police officers was that she had been noisy, rowdy, and possibly drunk, resisted arrest, used pepper spray, and assaulted the officer first, with the officer only acting in self-defence. The court found that the version of the plaintiff was reasonably probable and that the defence witness was unreliable. It held that the plaintiff had been wrongfully and unlawfully arrested and assaulted and awarded her an amount for damages.

Müller and Engelhard v Namibia (2002), case No SA 2/98 (Sup Ct) (Müller). 

Michael Andreas Müller (a German citizen) and Imke Engelhard (a Namibian citizen) challenged Namibia’s Aliens Act 1937, Section 9(1)(a), on the grounds that it discriminated based on sex. Under the Act, a wife could automatically assume her husband’s surname upon marriage, but a husband wanting to assume his wife’s surname had to go through a formal and costly application procedure. The couple argued that this distinction violated several Article 26 (equality before the law and non-discrimination), Article 23(4) (equality between spouses in marriage), and Article 17(1) (privacy and family life) of the ICCPR.

In March 2002, the UN Human Rights Committee (UNHRC) held that the Supreme Court of Namibia violated Article 26 and overturned the decision of this case. UNHRC stated that the differentiation was sex-based and unjustified traditions could not be used to defend gender discrimination. Namibia was required to amend its law to eliminate gender discrimination in surname choices.

This case itself did not directly address LGBTQI+ issues. However, the reasoning became useful in arguments about gender identity, same-sex family recognition and the equal treatment of intimate relationships under human rights law. It later served as a legal basis for the landmark cases Digashu and Another v Government of the Republic of Namibia (2023) and Dausab v Minister of Justice (2024).

Chairperson of the Immigration Selection Board v Frank and Another (2001), (SA 8 of 1999) [2001] NASC 1 (5 March 2001)

The case concerns a lesbian couple, consisting of a Namibian woman and a German woman. The German woman, Erna Elizabeth Frank, applied to the Immigration Selection Board for a permanent residence permit in 1995, which was refused. She reapplied in 1997 and was refused again. Her application emphasised her qualifications, work experience, and long-term relationship with Elizabeth Khaxas, a Namibian woman. The Board denied Frank’s application and held that the women’s ‘long-term relationship’ was not one recognised by law. The High Court set aside the Immigration Selection Board’s refusal of Frank’s permanent residence application. It ordered that the permit be granted and held that the refusal was unjustified and procedurally unfair. The Board then appealed to the Supreme Court. However, the Supreme Court dealt mainly with the Board’s appeal being out of time, and it refused condonation and reinstatement. As a result, the appeal lapsed, and the High Court’s order remained effective.

International case law

EPM v UK Upper Tribunal (2023) (PA/50453/2020)

A Namibian gay man appealed the refusal of his asylum, humanitarian protection, and human rights claims in the UK. He said he feared persecution from his family and ex-partner if returned to Windhoek. The First-tier Tribunal accepted that he was credible, gay, and a member of a particular social group. However, it stated that protection in Namibia was available and the appellant could relocate to Swakopmund, where there was an LGBTQI+ community, and that it would not be unduly harsh for him to do so. The Upper Tribunal dismissed the appeal and upheld the first-tier Tribunal’s decision. It held that there was no material legal error and the internal relocation was proportionate.

LM v UK Upper Tribunal (2021) (PA/00734/2020)

LM, a Namibian man born in 1980, arrived in the UK in December 2018 and applied for asylum in July 2019. He sought protection as a gay man fearing persecution from his family. He stated that his family discovered his sexual orientation, which led to beatings and forced marriage attempts. The First-tier Tribunal dismissed the case due to contradictory statements and lack of evidence. Furthermore, it stated that there is sufficient protection in Namibia. The Upper Tribunal dismissed the appeal and upheld the decision of the First-tier Tribunal. It held that there was no legal error and no risk on return to Namibia for the appellant.