Namibian Law on LGBT Issues (2015)

Total Page:16

File Type:pdf, Size:1020Kb

Namibian Law on LGBT Issues (2015) Namibian Law on LGBT Issues Gender Research and Advocacy Project LEGAL ASSISTANCE CENTRE 2015 Section Heading A ACKNOWLEDGEMENTS The primary author of this report is Dianne Hubbard. Research, writing and other support was provided by Felix Lüth, Laura Halonen, Shane Meckler, Sam Szoke-Burke, Drew Aiken, Rachel Coomer, Yolande Engelbrecht, Grace Kapere, and Markus Ihalainen. Design and layout are by Perri Caplan. Thanks also to the many Namibian groups working with LGBT issues for their input and interest, and to the entire Legal Assistance Centre team. The project was funded by the Government of the United States of America and the Embassy of Finland in Namibia. © Legal Assistance Centre 2015 This report may be freely copied for educational purposes, as long as the source is acknowledged. PUBLISHER’S CONTACT DETAILS 4 Marien Ngouabi Street (former name Körner Street), Windhoek PO Box 604, Windhoek, Namibia Telephone 264-061-223356 Fax 264-061-234953 Email [email protected] Website www.lac.org.na A digital version (PDF) of this publication is available on the LAC website. B Namibian Law on LGBT Issues ISBN 978-99945-61-53-7 CONTENTS Chapter 1: INTRODUCTION .............................................................................................................................................. 1 1.1 Terminology .................................................................................................................................................... 2 1.2 Homosexuality and bisexuality ................................................................................................. 7 1.3 Transgenderism ....................................................................................................................................... 16 1.4 Intersexuality .............................................................................................................................................. 21 Chapter 2: CONSTITUTION ............................................................................................................................................. 27 2.1 Namibia’s Bill of Rights ..................................................................................................................... 28 2.2 Protection in the Namibian Constitution for LGBT rights ................................ 29 2.3 Limiting fundamental rights ......................................................................................................... 42 2.4 Enforcing fundamental rights .................................................................................................... 43 Chapter 3: INTERNATIONAL LAW ........................................................................................................................ 45 3.1 Introduction ................................................................................................................................................. 46 3.2 The role of international law in Namibia ....................................................................... 46 3.3 LGBT rights under international law ..................................................................................... 47 3.4 Conclusion ................................................................................................................................................... 61 Chapter 4: CRIME ......................................................................................................................................................................... 63 4.1 Introduction ................................................................................................................................................. 64 4.2 Sodomy and unnatural sexual off ences ....................................................................... 65 4.3 Public indecency, indecent assault and related statutory off ences .......................................................................................................................................................... 76 4.4 Sex work and brothels ...................................................................................................................... 77 Chapter 5: PROTECTION .................................................................................................................................................... 81 5.1 Introduction ................................................................................................................................................. 82 5.2 Rape and other non-consensual sexual contact ............................................... 84 Contentss i 5.3 Other violent crimes ........................................................................................................................... 86 5.4 Domestic violence ............................................................................................................................... 87 5.5 Protections against exploitation in respect of sex work ................................ 88 5.6 Bullying ............................................................................................................................................................. 90 5.7 Recommendations for protecting the LGBT community .............................. 91 Chapter 6: SPEECH ..................................................................................................................................................................... 93 A. PROTECTION AGAINST HATE SPEECH AND INVASION OF PRIVACY .......................................................................................................................................................... 94 6.1 Introduction ................................................................................................................................. 94 6.2 Legislation protecting against hate speech in Namibia .............. 95 6.3 Criminal remedies in Namibia ................................................................................. 97 6.4 Civil remedies in Namibia ............................................................................................ 99 6.5 Using constitutional rights to protect against hate speech .......................................................................................................................................... 103 6.6 International law: Hate speech and crimes against humanity ...................................................................................................................................... 104 6.7 Models for law reform .................................................................................................... 105 B. PROTECTION FOR FREEDOM OF EXPRESSION ABOUT LGBT ISSUES .............................................................................................................................................................. 106 6.8 Restrictions on “propaganda of homosexuality” ............................. 106 6.9 Limitations on indecent, obscene and undesirable speech .......................................................................................................................................... 107 Chapter 7: LABOUR ............................................................................................................................................................... 109 7.1 Introduction to LGBT employment discrimination ............................................ 110 7.2 Employment discrimination laws in Namibia ........................................................ 112 7.3 International law ................................................................................................................................. 116 7.4 Sexual harassment ............................................................................................................................ 119 7.5 Family responsibilities .................................................................................................................... 121 7.6 Compassionate leave ................................................................................................................... 122 7.7 Severance pay and dependants on agricultural land ............................... 123 7.8 Social security benefi ts ................................................................................................................ 124 7.9 Employees’ compensation ...................................................................................................... 124 7.10 Models for law reform .................................................................................................................... 125 ii Namibian Law on LGBT Issues Chapter 8: FAMILY ................................................................................................................................................................... 127 8.1 Introduction .............................................................................................................................................. 128 8.2 Marriage ...................................................................................................................................................... 128 8.3 Current legal position of same-sex partners in Namibia .......................... 136 8.4 Legal mechanisms which can be applied to same-sex partnerships .............................................................................................................................................
Recommended publications
  • GUIDE to CIVIL SOCIETY in NAMIBIA 3Rd Edition
    GUIDE TO CIVIL SOCIETY IN NAMIBIA GUIDE TO 3Rd Edition 3Rd Compiled by Rejoice PJ Marowa and Naita Hishoono and Naita Marowa PJ Rejoice Compiled by GUIDE TO CIVIL SOCIETY IN NAMIBIA 3rd Edition AN OVERVIEW OF THE MANDATE AND ACTIVITIES OF CIVIL SOCIETY ORGANISATIONS IN NAMIBIA Compiled by Rejoice PJ Marowa and Naita Hishoono GUIDE TO CIVIL SOCIETY IN NAMIBIA COMPILED BY: Rejoice PJ Marowa and Naita Hishoono PUBLISHED BY: Namibia Institute for Democracy FUNDED BY: Hanns Seidel Foundation Namibia COPYRIGHT: 2018 Namibia Institute for Democracy. No part of this publication may be reproduced in any form or by any means electronical or mechanical including photocopying, recording, or by any information storage and retrieval system, without the permission of the publisher. DESIGN AND LAYOUT: K22 Communications/Afterschool PRINTED BY : John Meinert Printing ISBN: 978-99916-865-5-4 PHYSICAL ADDRESS House of Democracy 70-72 Dr. Frans Indongo Street Windhoek West P.O. Box 11956, Klein Windhoek Windhoek, Namibia EMAIL: [email protected] WEBSITE: www.nid.org.na You may forward the completed questionnaire at the end of this guide to NID or contact NID for inclusion in possible future editions of this guide Foreword A vibrant civil society is the cornerstone of educated, safe, clean, involved and spiritually each community and of our Democracy. uplifted. Namibia’s constitution gives us, the citizens and inhabitants, the freedom and mandate CSOs spearheaded Namibia’s Independence to get involved in our governing process. process. As watchdogs we hold our elected The 3rd Edition of the Guide to Civil Society representatives accountable.
    [Show full text]
  • Protecting the Human Rights of Sexual Minorities in Contemporary Africa
    See discussions, stats, and author profiles for this publication at: https://www.researchgate.net/publication/315755719 Protecting the human rights of sexual minorities in contemporary Africa Book · April 2017 CITATION READS 1 471 1 author: Sylvie Namwase University of Copenhagen 4 PUBLICATIONS 2 CITATIONS SEE PROFILE Some of the authors of this publication are also working on these related projects: Children and former child soldiers as victims and perpetrators of international crimes View project Use of force laws in riot control and crimes against humanity under the ICC Statute View project All content following this page was uploaded by Sylvie Namwase on 03 April 2017. The user has requested enhancement of the downloaded file. Protecting the human rights of S E X U A L M I N O R I T I E S in contemporary Africa Sylvie Namwase & Adrian Jjuuko (editors) 2017 Protecting the human rights of sexual minorities in contemporary Africa Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication. For more information on PULP, see www.pulp.up.ac.za Printed and bound by: BusinessPrint, Pretoria To order, contact: PULP Faculty
    [Show full text]
  • THE WOMEN's MOVEMENT in NAMIBIA: HISTORY, CONSTRAINTS and POTENTIAL Dianne Hubbard & Colette Solomon
    THE WOMEN'S MOVEMENT IN NAMIBIA: HISTORY, CONSTRAINTS AND POTENTIAL Dianne Hubbard & Colette Solomon Dianne Hubbard does legal research on gender issues for a public interest law firm called the Legal Assistance Centre. She is also a member of Women's Solidarity, a volunteer group involved in education and counselling around the issue of violence against women. Colette Solomon does social and economic research for the Social Sciences Division of the Multi- Disciplinary Research Centre at the University of Namibia. She is also a member of the committee convened by the government's Department of Women Affairs to prepare the national report for Beijing. Both authors live in Windhoek. Both see themselves as in being involved in work which includes educational and activist components as well as more traditional research. Both consider themselves to be part of the women's movement. Although one author is white and the other black, both are members of Namibia's urban, educated elite. ***** As a starting point, it is difficult to say whether there is something which can validly be called "a women's movement" in Namibia at present. On the one hand, it is possible to speak of a Namibia women's movement in two senses. Firstly, although there is no single organization which speaks for all Namibian women, various non-governmental organizations and governmental bodies which are concerned about issues affecting women have on occasion been able to put aside their differences to work together to achieve common aims. Secondly, there is a growing perception amongst Namibian women that many of their social and economic problems are related to their position as women, and they are showing an increasing interest in organizing to address such problems jointly.
    [Show full text]
  • Intestate Succession and the Survivor of an Unformalised Same-Sex Conjugal Relationship
    276 OBITER 2018 INTESTATE SUCCESSION AND THE SURVIVOR OF AN UNFORMALISED SAME-SEX CONJUGAL RELATIONSHIP: Laubscher No v Duplan 2017 (2) SA 264 (CC) 1 Introduction When a person dies intestate his or her heirs are determined by the provisions of section 1(1) and (2) of the Intestate Succession Act 81 of 1987 (hereinafter “the Intestate Succession Act”). Included amongst the heirs is the deceased’s surviving spouse, who either takes the entire estate or shares it with the deceased’s descendants (if any) (s 1(1)(a) and (c) of the Act; for a detailed exposition of the rules of intestate succession see Corbett, Hofmeyr, and Kahn The Law of Succession in South Africa 2ed (2001) 562– 577; De Waal and Schoeman-Malan Law of Succession 5ed (2015) 13–35). Historically, the reference to “spouse” in the Act was taken to mean a person to whom the deceased was married in terms of the Marriage Act 25 of 1961 (hereinafter “the Marriage Act”). Accordingly, persons who were married to the deceased merely by religious rites and persons with whom the deceased was in a long-term conjugal relationship that was unformalised by marriage were excluded. The advent of constitutional democracy in South Africa resulted in a number of challenges to this status quo through reliance on the equality clause of the Bill of Rights (s 9 of The Constitution of the Republic of South Africa, 1996). As a result of these challenges it has now been recognised that the survivor of a Hindu marriage (Govender v Ragavayah NO 2009 (3) SA 178 (D)), a monogamous Muslim marriage (Daniels v Campbell NO 2004 (5) SA 331 (CC)), and a polygynous Muslim marriage (Hassam v Jacobs NO 2009 (5) SA 572 (CC)) all have the right to inherit on intestacy as a “spouse”.
    [Show full text]
  • A Survey of Laws Impacting the Human Rights of Lesbian, Gay, Bisexual and Transgender Persons in Selected Southern African Countries
    A SURVEY OF LAWS IMPACTING THE HUMAN RIGHTS OF LESBIAN, GAY, BISEXUAL AND TRANSGENDER PERSONS IN SELECTED SOUTHERN AFRICAN COUNTRIES March 16, 2016 OutRight Action International wishes to acknowledge with thanks the invaluable contributions to the report provided on a pro bono basis by the international law firms of Milbank and Webber Wentzel, with the support of the Cyrus R. Vance Center for International Justice, and the African Affairs Committee, of the New York Bar Association. I. EXECUTIVE SUMMARY This report seeks to outline the current state of legal protection for the human rights of lesbian, gay, bisexual and transgender (“LGBT”) persons in southern Africa by examining relevant current legislation in each of South Africa, Malawi, Namibia, Zambia and Zimbabwe and surveying the enforcement activities with regard to said legislation and communal attitudes toward LGBT individuals. By combining the individual case studies and providing a like-for- like comparison, this report seeks to identify how the neighboring states have influenced each other, both legislatively and with regard to popular attitudes, and to ascertain specific areas in which any individual country has made particularly progressive strides, thereby isolating the factors which have precipitated such progress. This report consists of the following sections: (i) an executive summary, (ii) case studies for each of South Africa, Malawi, Namibia, Zambia and Zimbabwe, (iii) a brief analysis of the international and regional treaties and protocols that may impact the human rights of LGBT persons to which any of the above countries is a party and (iv) a conclusion summarizing the results of the preceding analysis.
    [Show full text]
  • Comparative Perspectives on Strategic Remedial Delays Holning S
    University of North Carolina School of Law Carolina Law Scholarship Repository Faculty Publications Faculty Scholarship 2016 Comparative Perspectives on Strategic Remedial Delays Holning S. Lau University of North Carolina School of Law, [email protected] Follow this and additional works at: http://scholarship.law.unc.edu/faculty_publications Part of the Law Commons Publication: Tulane Law Review This Article is brought to you for free and open access by the Faculty Scholarship at Carolina Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. Comparative Perspectives on Strategic Remedial Delays Holning Lau* In controversial constitutional cases, courts sometimes grant the government an extended period of time to correct rights violations—what I call “remedial grace periods”— hoping that the postponed implementation of change will temper backlash. The most well- known example of such remedial delay followed the U.S. Supreme Court decision in Brown v. Board of Education II. This Article spotlights a more recent remedial grace period. In Minister of Home Affairs v. Fourie, South Africa’s highest court ruled that depriving same-sex couples of marriage was unconstitutional. It could have implemented same-sex marriage immediately by reading it into the law, but it chose not to. Instead, it sought to defuse controversy by giving Parliament time to remedy the situation legislatively. Fourie’s grace period complicates prevailing wisdom about grace periods that derives from Brown II. Part I of this Article provides background by comparing remedial grace periods to other judicial delay tactics.
    [Show full text]
  • Promoting Democracy and Good Governance
    State Formation in Namibia: Promoting Democracy and Good Governance By Hage Gottfried Geingob Submitted in accordance with the requirements for the degree of Doctor of Philosophy The University of Leeds School of Politics and International Studies March 2004 The candidate confirms that the work submitted is his own and that appropriate credit has been given where reference has been made to the work of others. This copy has been supplied on the understanding that it is copyright material and that no quotation from the thesis may be published without proper acknowledgement. encourage good governance, to promote a culture of human rights, and to build state institutions to support these policies have also been examined with a view to determining the nature of the state that evolved in Namibia. Finally, the study carries out a democratic audit of Namibia using Swedish normative tools. 1 Acknowledgements The last few years have been tumultuous but exciting. Now, the academic atmosphere that provided a valuable anchor, too, must be hauled up for journeys beyond. The end of this most enjoyable academic challenge has arrived, but I cannot look back without a sense of loss - loss of continuous joys of discovery and academic enrichment. I would like to thank my supervisor, Lionel Cliffe, for his incredible support. In addition to going through many drafts and making valuable suggestions, Lionel helped me endure this long journey with his sustained encouragement. I also thank Ray Bush for going through many drafts and making valuable comments. He has an uncanny ability to visualize the final outcome of research effort.
    [Show full text]
  • Gender and Sexuality in Namibia
    Unravelling Taboos Gender and Sexuality in Namibia Edited by Suzanne LaFont and Dianne Hubbard Gender Research and Advocacy Project LEGAL ASSISTANCEUnravelling C ENTTaboos: RGenderE and Sexuality in Namibia ii Unravelling Taboos: Gender and Sexuality in Namibia Unravelling Taboos Gender and Sexuality in Namibia Edited by Suzanne LaFont and Dianne Hubbard Gender Research & Advocacy Project LEGAL ASSISTANCE CENTRE Windhoek NAMIBIA Unravelling Taboos: Gender and Sexuality in Namibia iii © Legal Assistance Centre, 2007 4 Körner Street Windhoek P.O. Box 604 Windhoek Namibia 264-061-223356 264-061-234953 Email – [email protected] Website – www.lac.org.na An Adobe Acrobat (pdf) version of this publication is posted on the LAC website. Printed and bound by John Meinert Printing (Pty) Ltd in Windhoek. ISBNv Unravelling 978-99945-61-23-0 Taboos: Gender and Sexuality in Namibia Contents Acknowledgements ........................................................................................ vi 1. Overview: Gender and Sexuality in Namibia Suzanne LaFont ........................................................................................1 History: Colonialism, Christianity and Tradition 2. Making Tradition: A Historical Perspective on Gender in Namibia Heike Becker ..........................................................................................22 3. Past and Present Practices: Sexual Development in Namibia Philippe Talavera .....................................................................................39 4. The Myth of the Asexual
    [Show full text]
  • Namibia Elections and Conflict Management
    OCCASIONAL PAPER 2/2004 Namibia Elections and Conflict Management by Kemi Ogunsanya1 Introduction In November 2004, Namibia conducted its third generation of elections at the presidential, parliamentary and regional levels, since it became independent from apartheid South Africa in 1990. After fourteen years of independence, Namibia has established tolerance for opposition politics. The South West African People’s Organisa- tion (SWAPO) led by President Sam Nujoma remains the dominant party, although there exist political tensions between SWAPO and 1. Kemi Ogunsanya is the Conflict Prevention, Mitigation and Response Advisor at ACCORD. Kemi Ogunsanya the main opposition party, Democratic Turnhalle Alliance (DTA). The over- whelming victory of the ruling party in the presidential and parliamentary elections, amidst calls by opposition parties for a recount of votes cast, marked the end of Sam Nujoma’s 14 years Presidency since independence. Mr. Hifikepunye Pohamba, the former Minster of Land Affairs and Resettlement, succeeded President Sam Nujoma following his inauguration on March 21, 2005. Even though Namibia might not currently show any signs of open conflict, the symptoms are prevalent. In the run-up to the presidential and parliamentary elections, there was a political contestation on the verification of the voters’ roll four days prior to the elections. By law political parties ought to receive the voters’ roll 21 days before the election date, but political parties complained that such an act opens the possibility for electoral fraud. There were further allegations of political bias on the part of the Namibia Broadcasting Corporation (NBC) by affording the ruling SWAPO party a disproportionate amount of television time in contrast to other political parties.
    [Show full text]
  • A Reader in Namibian Politics
    State, Society and Democracy A Reader in Namibian Politics Edited by Christiaan Keulder Macmillan Education Namibia Publication of this book was made possible by the generous support of the Konrad-Adenauer-Stiftung. The views expressed by the authors are not necessarily the views of the Konrad-Adenauer-Stiftung. Konrad Adenauer Stiftung P.O.Box 1145, Windhoek Namibia Tel: +264 61 225568 Fax: +264 61 225678 www.kas.de/namibia © Konrad Adenauer Stiftung & individual authors, 2010 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. Language editing by Sandie Fitchat Cover image by Melody Futter First published 2000 Reprinted 2010 Macmillan Education Namibia (Pty) Ltd P O Box 22830 Windhoek Namibia ISBN 978 99916 0265 3 Printed by John Meinert Printing, Windhoek, Namibia State, Society and Democracy Contents Acknowledgements ........................................................................................ vii List of Contributors ...................................................................................... viii List of Abbreviations ........................................................................................ix Introduction Christiaan Keulder ..............................................................................................1
    [Show full text]
  • NAMIBIA Namibia Is a Multiparty Democracy with a Population Of
    NAMIBIA Namibia is a multiparty democracy with a population of approximately 2.2 million. The presidential and parliamentary elections held in November 2009 resulted in the reelection of President Hifikepunye Pohamba and the retention by the ruling South West Africa People's Organization (SWAPO) of its parliamentary majority. Despite some irregularities, international observers characterized the election as generally free and fair. In March the High Court dismissed a challenge to the election outcome filed by nine opposition parties; however, in September the Supreme Court overturned the decision and sent the case back to the High Court, where the case remained pending at year's end. Security forces reported to civilian authorities. Human rights problems included police use of excessive force; prison overcrowding and poor conditions in detention centers; arbitrary arrest, prolonged pretrial detention, and long delays in trials; criticism of nongovernmental organizations (NGOs); harassment and political intimidation of opposition members; and official corruption. Societal abuses included violence against women and children, including rape and child abuse; discrimination against women, ethnic minorities, and indigenous people; child trafficking; discrimination and violence based on sexual orientation and gender identity; and child labor. RESPECT FOR HUMAN RIGHTS Section 1 Respect for the Integrity of the Person, Including Freedom From: a. Arbitrary or Unlawful Deprivation of Life There were no reports that the government or its agents committed arbitrary or unlawful killings. There were no developments in the 2008 case in which a police officer shot and killed a demonstrator who stabbed a police constable during a political rally. On April 22, seven of the nine police officers accused of killing a suspect during interrogation in 2006 were found guilty of culpable homicide, assault with intent to do grievous bodily harm, and obstructing the course of justice.
    [Show full text]
  • Gory V Kolver NO and Others (Starke and Others Intervening)
    CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT 28/06 MARK GORY Applicant versus DANIEL GERHARDUS KOLVER NO First Respondent HENRY HARRISON BROOKS Second Respondent MARYKE BROOKS Third Respondent MASTER OF THE HIGH COURT, PRETORIA Fourth Respondent MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT Fifth Respondent and ERILDA STARKE AND OTHERS First to Fourth Applicants for Intervention and BOBBY LEE BELL Conditional Applicant for Intervention Heard on : 24 August 2006 Decided on : 23 November 2006 JUDGMENT VAN HEERDEN AJ: VAN HEERDEN AJ [1] This case concerns the constitutional validity of section 1(1) of the Intestate Succession Act 81 of 1987 (the Act) to the extent that it confers rights of intestate succession on heterosexual spouses but not on permanent same-sex life partners, as well as the appropriate remedy should this Court confirm the order of constitutional invalidity made by the Pretoria High Court. Background [2] The applicant, Mr Mark Gory, and the late Henry Harrison Brooks (the deceased) were, at the time of the latter’s death, partners in a permanent same-sex life partnership in which they had undertaken reciprocal duties of support. The factual background of the relationship between Mr Gory and Mr Brooks is set out fully in the reported judgment of the High Court.1 As the factual findings of the High Court in this regard have not been challenged, it is not necessary to repeat the facts in any detail. [3] When Mr Brooks died intestate on 30 April 2005, his parents, who were the second and third respondents in the court below, nominated the first respondent, Mr Daniel Gerhardus Kolver, to be appointed by the Master of the High Court, Pretoria (the sixth respondent in the court below), as the executor of their son’s estate.
    [Show full text]