A historic ruling in Namibia has recognised same-sex marriages formalised abroad. But it has sparked a backlash
Sharon Kavhu
30 June 2023,
The first gay pride parade in Namibia, the Swakopmund Gay Pride, June 2016
| Getty Images
Just before the start of Pride Month, the Namibian supreme court ruled its government must recognise the union of same-sex marriages performed abroad, even though they remain illegal under domestic laws. The historic ruling made Namibia only the second African country after South Africa to recognise same-sex marriage.
The judgment came as a relief to the country’s LGBTIQ community, particularly Namibians and their foreign spouses who had been denied residency permits under the country’s Immigration Control Act. The law as it was left many same-sex couples with only two options: either leave Namibia to live together or live in different countries. Foreign-born spouses who chose to live in Namibia were at risk of deportation.
Carli Schickerling, a lawyer representing the two same-sex couples involved in the six-year case, said Namibia’s LGBTIQ community had been waiting for a ruling like this for the better part of a decade. A backlash to the court's decision proves there is still a long way to go in the battle for equality but, for the community, it's a sign of progress. Persistence has paid off.
“I think as an attorney, you dream about being involved in a matter that changes our law or its interpretation, something groundbreaking,” Schickerling said. “This was it for me and I feel immensely proud of the outcome. We were ecstatic.”
News of the court ruling came unexpectedly for Shereleen Januarie-Nicholas, a Namibian who was forced to live abroad after marrying her partner. It has brought hope that she and her spouse will finally be able to return to Namibia and be treated like a normal couple.
She never imagined the day would come, always having known as she grew up in Namibia that her sexual preferences were different from the rest of her family members and nobody would understand how she felt. She also knew she could not express herself because society discriminated against people like her.
Things took a positive turn when she moved to South Africa in 2009. Januarie-Nicholas was able to express herself and her sexual preferences and in 2020, eight months after she met the love of her life, Claudette, they decided to marry.
It is part of African culture for people to gather and celebrate marriages as achievements, but only one member of Januarie-Nicholas’s family attended her wedding. This was apparently because of Covid travel restrictions, but she believes the reality was very different.
“Some did not even want to acknowledge that I was getting married to a woman,” she said. “It became a conversation that I was influenced by South Africans, not that I was always this way. I would have loved to have another wedding in Namibia but due to the law at the time that was impossible.”
Januarie-Nicholas felt “overwhelmed by emotion” when news of the ruling broke. She recalls being elated and ringing another LGBTIQ Namibian friend who, like her, lived abroad.
“It made me realise how we are basically refugees in South Africa because we could never be ourselves and be safe in Namibia,” she added.
The court decision reminded her of how far Namibia’s LGBTIQ community had come. Until then, Januarie-Nicholas says, people like her had to be “subtle”, displays of public affection were “a big no no” and she “had to hide who I am”. “We all just kept quiet,” she added.
Though Januarie-Nicholas had always wanted to move back to Namibia after finishing her studies – and to show her South African wife the beauty of her home country – thoughts of the discrimination there had kept her away.
For one of the couple’s involved in the case, also of Namibian and South African nationality, it has been a long road. Namibian Hendrik Potgieter married South African Daniel Digashu in South Africa in 2015. The couple have gone to court several times in their long, lonely battle for equal rights, which Digashu admits came at a cost – financially, emotionally and physically.
He said the supreme court ruling overwhelmed him and had they been fighting alone, without the community, he would not have made it this far.
“The litigation journey was a lonely one, initially. But we made some beautiful friends and connections along the way, from litigation and support by the Southern Africa Litigation Centre who saved us a great deal, to the Civil Society Organisations here in Namibia with whom we found such great sense of community,” he said.
Just like Schickerling, Digashu believes the ruling opens doors for Namibia’s LGBTIQ community “to raise their issues and get the rights they so deserve”.
The ruling has also changed the vibe of this year’s Pride Month, said Wendelinus Hamutenya, an activist who was the first Mr Gay Namibia in 2012 and one of the first Africans to compete in the Mr Gay World Competition.
He described it as an historic, exciting and transformative moment, as well as a surprising one given sodomy is still criminalised under Roman-Dutch common law, discrimination of LGBTIQ people is legal and same-sex marriages of Namibians are not recognised by the courts.
“I was not expecting such a ruling in our land of the brave,” he said. “We inherited the sodomy provision under the common law when we gained independence from South Africa in 1990, and this law still criminalises LGBT people, criminalises sexual activity between males.”
Even as the LGBTIQ community celebrates the milestone, Hamutenya says it is time to think beyond it. Namibia’s constitution remains rigidly set against same-sex relationships, for instance, and there are many legislative hurdles to equal rights.
The situation will remain unchanged until parliament repeals these laws or the court rules them to be unconstitutional.
There was hope in 2019, when the Law Reform and Development Commission of Namibia identified the criminalisation of sodomy and of ‘unnatural sexual offences’ to be obsolete laws.
The ruling was something of a triumph for activists, who had sought funding and advocacy from non-profits and civil society groups to prepare a report for Namibia’s justice minister asking for repeal. But parliament rejected the motion, and now, following the latest supreme court ruling, prime minister Saara Kuugongelwa-Amadhila has revealed plans to strengthen anti-gay legislation after the Coalition of Christian Churches demanded that same-sex marriages be outlawed in Namibia.
Kuugongelwa-Amadhila’s SWAPO party put out a statement saying it “strongly condemns and repudiates all kinds of immoral and indecent acts” and “other associated acts that are either inconsistent with Namibian laws or against public policy”.
SWAPO said it was instructing its government “to enforce all laws in force that are aimed at preventing and combating such acts”.
Just before the start of Pride Month, the Namibian supreme court ruled its government must recognise the union of same-sex marriages performed abroad, even though they remain illegal under domestic laws. The historic ruling made Namibia only the second African country after South Africa to recognise same-sex marriage.
The judgment came as a relief to the country’s LGBTIQ community, particularly Namibians and their foreign spouses who had been denied residency permits under the country’s Immigration Control Act. The law as it was left many same-sex couples with only two options: either leave Namibia to live together or live in different countries. Foreign-born spouses who chose to live in Namibia were at risk of deportation.
Carli Schickerling, a lawyer representing the two same-sex couples involved in the six-year case, said Namibia’s LGBTIQ community had been waiting for a ruling like this for the better part of a decade. A backlash to the court's decision proves there is still a long way to go in the battle for equality but, for the community, it's a sign of progress. Persistence has paid off.
“I think as an attorney, you dream about being involved in a matter that changes our law or its interpretation, something groundbreaking,” Schickerling said. “This was it for me and I feel immensely proud of the outcome. We were ecstatic.”
News of the court ruling came unexpectedly for Shereleen Januarie-Nicholas, a Namibian who was forced to live abroad after marrying her partner. It has brought hope that she and her spouse will finally be able to return to Namibia and be treated like a normal couple.
She never imagined the day would come, always having known as she grew up in Namibia that her sexual preferences were different from the rest of her family members and nobody would understand how she felt. She also knew she could not express herself because society discriminated against people like her.
Things took a positive turn when she moved to South Africa in 2009. Januarie-Nicholas was able to express herself and her sexual preferences and in 2020, eight months after she met the love of her life, Claudette, they decided to marry.
It is part of African culture for people to gather and celebrate marriages as achievements, but only one member of Januarie-Nicholas’s family attended her wedding. This was apparently because of Covid travel restrictions, but she believes the reality was very different.
“Some did not even want to acknowledge that I was getting married to a woman,” she said. “It became a conversation that I was influenced by South Africans, not that I was always this way. I would have loved to have another wedding in Namibia but due to the law at the time that was impossible.”
Januarie-Nicholas felt “overwhelmed by emotion” when news of the ruling broke. She recalls being elated and ringing another LGBTIQ Namibian friend who, like her, lived abroad.
“It made me realise how we are basically refugees in South Africa because we could never be ourselves and be safe in Namibia,” she added.
The court decision reminded her of how far Namibia’s LGBTIQ community had come. Until then, Januarie-Nicholas says, people like her had to be “subtle”, displays of public affection were “a big no no” and she “had to hide who I am”. “We all just kept quiet,” she added.
Though Januarie-Nicholas had always wanted to move back to Namibia after finishing her studies – and to show her South African wife the beauty of her home country – thoughts of the discrimination there had kept her away.
For one of the couple’s involved in the case, also of Namibian and South African nationality, it has been a long road. Namibian Hendrik Potgieter married South African Daniel Digashu in South Africa in 2015. The couple have gone to court several times in their long, lonely battle for equal rights, which Digashu admits came at a cost – financially, emotionally and physically.
He said the supreme court ruling overwhelmed him and had they been fighting alone, without the community, he would not have made it this far.
“The litigation journey was a lonely one, initially. But we made some beautiful friends and connections along the way, from litigation and support by the Southern Africa Litigation Centre who saved us a great deal, to the Civil Society Organisations here in Namibia with whom we found such great sense of community,” he said.
Just like Schickerling, Digashu believes the ruling opens doors for Namibia’s LGBTIQ community “to raise their issues and get the rights they so deserve”.
The ruling has also changed the vibe of this year’s Pride Month, said Wendelinus Hamutenya, an activist who was the first Mr Gay Namibia in 2012 and one of the first Africans to compete in the Mr Gay World Competition.
He described it as an historic, exciting and transformative moment, as well as a surprising one given sodomy is still criminalised under Roman-Dutch common law, discrimination of LGBTIQ people is legal and same-sex marriages of Namibians are not recognised by the courts.
“I was not expecting such a ruling in our land of the brave,” he said. “We inherited the sodomy provision under the common law when we gained independence from South Africa in 1990, and this law still criminalises LGBT people, criminalises sexual activity between males.”
Even as the LGBTIQ community celebrates the milestone, Hamutenya says it is time to think beyond it. Namibia’s constitution remains rigidly set against same-sex relationships, for instance, and there are many legislative hurdles to equal rights.
The situation will remain unchanged until parliament repeals these laws or the court rules them to be unconstitutional.
There was hope in 2019, when the Law Reform and Development Commission of Namibia identified the criminalisation of sodomy and of ‘unnatural sexual offences’ to be obsolete laws.
The ruling was something of a triumph for activists, who had sought funding and advocacy from non-profits and civil society groups to prepare a report for Namibia’s justice minister asking for repeal. But parliament rejected the motion, and now, following the latest supreme court ruling, prime minister Saara Kuugongelwa-Amadhila has revealed plans to strengthen anti-gay legislation after the Coalition of Christian Churches demanded that same-sex marriages be outlawed in Namibia.
Kuugongelwa-Amadhila’s SWAPO party put out a statement saying it “strongly condemns and repudiates all kinds of immoral and indecent acts” and “other associated acts that are either inconsistent with Namibian laws or against public policy”.
SWAPO said it was instructing its government “to enforce all laws in force that are aimed at preventing and combating such acts”.
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