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Between constitution and legislature: A rock and a hard place

Between constitution and legislature: A rock and a hard place

By Albe Jacobs*

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

There are occurrences of rampant political homophobia and increased instances of violence against sexually diverse persons and members of the LGBTQ+ community in Namibia.

In the subsequent discourse regarding the legalization of same-sex marriages in Namibia, it becomes important to remind ourselves how we got here and be reminded of the stark instances of injustice that exist on the ground.

The complexities of navigating identity in a post-colonial context continue to impact youth across the global south, and nowhere is this more apparent than in the realm of gender identity. Namibian sexual minority youth often struggle with the evolving landscape of gender roles, as well as with expectations, and challenging traditional norms, all while negotiating a path within the boundaries of a constitution that does not guarantee equality and protection of fundamental rights for everyone.

Resilience within sexual minority groups has been largely overlooked, this is particularly true for sexual minority groups within Africa and sub-Saharan Africa. The young democracies that are in the process of cementing their political footing and discourse often frown upon sexual diversity and claim it as an enemy to national “African” discourse. This bleeds into the cultural landscape and as a result, breeds an exclusionary society where sexual minority groups are forced to navigate a maze of constitutional and legal obstacles to receive the rights and liberties awarded to the rest of heteronormative Namibian society.

When it comes to the Namibian Constitution, 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 run as a colony of South Africa. As a result of this, both countries were governed by British laws. After independence, however, Namibia kept the legal framework as is, periodically amending laws only as deemed necessary.

This is said to be done to avoid the creation of legal vacuums and as such, article 140 of the Namibian constitution provides that “all laws in force immediately before the date of independence shall remain in force until repealed or amended by Act of Parliament or until they are declared unconstitutional by a competent court”.

This highlights how in many instances laws have remained unchanged and have left Namibians held to the standards of a world that no longer exists. An example of this is the Abortion and Sterilisation Act 2 of 1975 which South Africa scrapped in 1996. Namibia has kept the apartheid-era law in place as protection of its Christian values despite self-defining as a secular state.

The journey to resilience for Namibian LGBTQ+ youth requires a collective commitment to dismantle systemic inequalities, challenging harmful stereotypes, and fostering environments that nurture individual strengths and identities. By exploring the socio-political landscape in which sexual minority groups must be resilient, sexual minority stress and political homophobia, we are taken 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 together.

  • Albe Jacobs is currently a master’s student in Sociology at Rhodes University in South Africa. Her research focuses on youth resilience in sexual minority groups in Namibia as a post-colonial state and goes further to explore the contradictions within the Namibian constitution and the state’s legal system.


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