Same-sex marriage ruling in Namibia brings hope to Ugandans and Kenyans

As Namibia's Supreme Court recognised same-sex marriages contracted abroad between citizens and foreign spouses last week, many see the ruling as a step towards decriminalising homosexuality in the country. Others hope the change could also influence other African countries.

Women in Cape Town, South Africa, protest a sentence given to two men under Malawi's anti-gay legislation in May 2010. AP - Schalk van Zuydam

The latest court ruling in Namibia resonates way beyond the Southern African country. 

For Neela Ghoshal, a long-time researcher on LGBT issues and Senior Director of Law, Policy, and Research at Outright International, it is a "really big step forward, focusing on equality and dignity".

She told RFI that, "even though there is still no ruling on decrimilising homosexuality in Namibia, this gives a hint as to how the court would handle such a case."

She  added that it is now "highly likely that Namibia would one day decriminalise homosexual behaviours." 

Southern Africa's constitution

Namibia's Supreme Court decision overturns a ruling  last year by the High Court, which refused to accept same-sex marriages concluded outside Namibia.

Good morning,

From Africa’s second country to recognized same-sex marriages concluded abroad: Namibia- land of the brave and home of the Born-FREE.

Dear Queer child, go take up space and love FREELY. This is what democracy looks like. #OmashengeOvanhu
🏳️‍🌈🇳🇦🏳️‍⚧️ pic.twitter.com/P9VvlzWDvn

— Namibia Equal Rights Movement (@EqualNamibia) May 18, 2023

This new ruling is bringing hope to the entire continent.

"We are hoping for progress, as this moves offers an alternative model," Ghoshal added.

"And it can now influence middle-of-the road MPs across the board."

Same-sex relations are legal in only 22 of Africa’s 54 countries. Only South Africa allows gay-marraige - legalised in 2006 - under the post-apartheid constitution..

West and Eastern Africa

Same-sex relations are however punishable by death or lengthy prison terms in some African countries, according to a global review by the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA). Africa accounts for nearly half of the countries worldwide where homosexuality is outlawed, according to the review.

For most of these countries, the situation is the result of old colonial law, and conservative religious influence from US anti-LGBT charities.

Thrity-two African countries already ban same-sex relationships, but a new law passed in Uganda on 3 May is “the first to outlaw merely identifying as LGBTQ,” Human Rights Watch said.

Recently, Uganda's parliament passed a new draft of anti-gay legislation, retaining many draconian provisions despite President Yoweri Museveni's call to rework an earlier version of the bill, following outcry from Western governments.

• Uganda lawmakers pass new draft of harsh anti-gay bill

But activists are not losing hope.

In Uganda and among the Ugandan diaspora abroad, activists have been mounting efforts to try and stop the legislation, and raise awareness on the need to protect LGBTIQ+ people.

• Ugandan activists brace for ratification of harsh anti-homosexuality bill

 Neela Ghoshal, who lived in Kenya and worked in Uganda, says that countries with better and freer space for civil society are doing better, like Kenya.

In Kenya, on 24 February, the Supreme Court ruled that the National Gay & Lesbian Human Rights Commission (NGLHRC) must be allowed to officially register as a non-governmental organisation (NGO).

It said it is unconstitutional to deny registration on the basis of the applicants’ sexual orientation. The ruling aligned with previous judgments from the High Court and the Court of Appeal.

The ruling, however, didn’t alter the Kenyan penal code, which still criminalises sexual acts “against the order of nature”. Those found guilty face up to 14 years in prison.

More LGBTIQ+ voices

Kevin Mwachiro is a Kenyan writer, activist and podcaster based in Kilifi. For a few years, he has been producing a successful literary podcast called Nipe Story, enabling him to broadcast queer voices from Kenya, Uganda, Nigeria or South Africa.

He says the latest backlash in against queer people in March was a shock, but many weren't surprised.

"We thought we had made so much progress," he told RFI, "but then came this barrage of hate speech... I found it absolutely awful.

"It comes as the result of deliberate misinformation against the LGBT+ community. Yet, it's up to us to write and speak about ourselves now, and I believe we're slowly recovering." 

He lauded the Nambia ruling on his social media page when it was announced. However he adds that "it had very little coverage in the media [as] most people don't care about our progress." 

IDAHOBIT2023 pic.twitter.com/2wZ8CD46Eh

— kevin mwachiro (@kevmwachiro) May 17, 2023

He says he will be happier when the ruling  is applied to a Black queer couples.

"This ruling about foreign spouses of queer African people has a feeling of privilege and whiteness. For me, the real progress has been made in the visibility we now have. We must also learn from other movements, who brought rights to women and other marginalised people over the century. Because there is still work to be done."