Letter – Between Constitution and Legislative: The sword and the hard place

Albe Jacobs

Same-sex relationships and the livelihoods of sexual minority groups and communities in Namibia have faced increased public contestation since the 2023 Supreme Court ruling to recognize same-sex marriages performed in abroad.

There are cases of rampant political homophobia and increased cases of violence against sexually diverse people and members of the LGBTQ+ community in Namibia. In the subsequent discourse on the legalization of same-sex marriage in Namibia, it is important to remember how we got here and to remember the clear cases of injustice that exist on the ground.

The complexities of navigating identity in a postcolonial context continue to impact young people across the global south, and nowhere is this more evident than in the realm of gender identity. Namibia’s sexual minority youth often struggle with the changing landscape of gender roles.

In addition to expectations and challenging traditional norms, negotiating a path within the confines of a constitution does not guarantee equality and protection of fundamental rights for all.

Resilience within sexual minority groups has been largely overlooked, this is particularly true for sexual minority groups within Africa and sub-Saharan Africa. Young democracies that are in the process of consolidating their political base and discourse often disapprove of sexual diversity and consider it an enemy of the national, “African” discourse.

This seeps into the cultural landscape and, as a result, creates an exclusionary society where sexual minority groups are forced to navigate a maze of constitutional and legal obstacles to receive the rights and freedoms afforded to the rest of Namibia’s heteronormative society. .

When it comes to the Constitution of Namibia, we see a document that does not grow with its people. Between 1920 and 1990, Namibia was handed over to Great Britain as a Class C Mandate. This Mandate was exercised by the Union of South African Authorities and, as such, Namibia was governed as a colony of South Africa.

As a result of this, both countries were governed by British laws. However, after independence, Namibia maintained the legal framework as it was, periodically amending the laws only when deemed necessary. This was done to avoid the creation of legal loopholes and as such, Article 140 of the Constitution of Namibia states that “all laws in force immediately before the date of independence shall remain in force until repealed or amended by a law of Parliament or until they are declared unconstitutional by a competent court of law.”

This highlights how in many cases the laws have not changed and have left Namibians subject to the rules of a world that no longer exists. An example of this is the Abortion and Sterilization Act 2 of 1975, which South Africa repealed in 1996. Namibia has kept the apartheid-era law in place as a protection of its Christian values ​​despite calling itself a secular state.

The path to resilience for Namibian LGBTQ+ youth requires a collective commitment to dismantle systemic inequalities, challenge harmful stereotypes, and foster environments that foster individual strengths and identities. By exploring the sociopolitical landscape in which sexual minority groups must be resilient, sexual minority stress and political homophobia, we embark on the journey that has brought us here, one of oppression, one of imposition, one of indoctrination and one that has allowed us to lose touch with what is truly African. If you want to go far, go accompanied.

*Albe Jacobs is currently a master’s student in sociology at Rhodes University in South Africa. Her research focuses on the resilience of young people in sexual minority groups in Namibia as a postcolonial state and goes further to explore the contradictions within the Namibian Constitution and the state’s legal system.