UNAIDS has welcomed the recent ruling by Namibia’s High Court that its laws prohibiting same-sex acts between men are unconstitutional as they unfairly discriminate against gay men.

Namibian citizen Friedel Dausab, supported by the Human Dignity Trust, sought to have laws prohibiting sodomy and “unnatural sex acts” and sections of the Immigration Control Act and the Defence Act that criminalised homosexuality declared invalid.

He brought the case against the Ministers of Justice, Home Affairs and Defence, the Prosecutor General and the Attorney General. 

Judges Nate Ndauendapo, Shafimana Ueitele and Claudia Claasen ruled in Dausab’s favour, noting that these laws discriminated as they treated gay men differently from women who have sex with men, and heterosexual men who have sex with women.

Dausab told Reuters after the ruling that he was “just happy” after the court’s decision as “it won’t be a crime to love any more.”

“The enforcement of private moral views of a section of the community (even if they form the majority of this community), which are based to a large extent on nothing more than prejudice, cannot qualify as such as a legitimate government purpose,” noted the judgement.

Anne Githuku-Shongwe, UNAIDS regional director for East and Southern Africa, described the court’s decision as ” a powerful step towards a more inclusive Namibia”.

“The colonial-era common law that criminalised same-sex sexual relations perpetuated an environment of discrimination and fear, often hindering access to essential healthcare services for LGBTQ+ individuals. To protect everyone’s health, we need to protect everyone’s human rights,” she said.

 In sub-Saharan Africa, men who have sex with men in countries where they are criminalised are five times more likely to be living with HIV than in countries that do not criminalise this, according to UNAIDS.

Globally, in 2022, men who have sex with men were 23 times more likely to acquire HIV, and transgender women 20 times more likely to acquire HIV than other adults aged 15–49.

Project HOPE, which also works to combat HIV in Africa, said that “dismantling discriminatory laws is a crucial step toward ensuring everyone can safely access health care, including HIV testing and treatment”.

Iraq outlaws ‘effeminacy’

Namibia’s ruling is similar to that of Botswana’s High Court in 2019, which declared that Section 164 of Botswana’s Penal Code was unconstitutional as it discriminated against LGBTQ people’s right to liberty and privacy.

While over half of Africa’s 54 countries prohibit consensual same-sex relations, since 2019, Botswana, Gabon, Angola, and Mauritius have repealed laws that criminalised LGBTQ+ people.

Further afield decriminalisation has also happened in Bhutan, Antigua and Barbuda, Barbados, Singapore, Saint Kitts and Nevis, Cook Islands, and Dominica.

Namibia’s High Court decision also bucks the trend set by Uganda and Ghana, which have made their colonial anti-LGBTQ laws even more harsh in the past 18 months.

Earlier this year, Iraq introduced anti-LGBTQ legislation that imposes a prison sentence of up to 15 years for same-sex sexual relations. Transgender people face up to three years in prison for receiving gender affirmation care, while the “intentional practice of effeminacy” is outlawed, and people who “promote homosexuality” face up to seven years in prison. 

UNAIDS urged all countries to follow Namibia’s lead, remove punitive laws, and tackle prejudices against LGBTQI people.

“Criminalising consensual same-sex relationships and gender expression not only violates fundamental human rights but also undermines efforts to end AIDS by driving marginalised populations underground and away from essential health services, including life-saving HIV prevention, treatment and care services,” according to UNAIDS.

“Stigma, discrimination and criminalisation can be lethal,” said Winnie Byanyima, executive director of UNAIDS.

“In the response to HIV, we have learnt that a human rights-based approach is critical in responding to a health crisis and leaving no one behind. Countries must remove these discriminatory criminal laws and introduce legislation which protects rights if we are to end AIDS as a public health threat for everyone.”

Image Credits: UNAIDS.