One of our projects at the Legal Assistance Centre concerns LGBT rights in Namibia. The struggle is all uphill as not only is sexual orientation unfortunately not an express ground on the basis of which discrimination is prohibited under the Namibian Constitution, but the common law actually prohibits “sodomy”, which is the code word for criminalising (male) homosexuality. It is a dead letter in the law that has not been enforced in years, but there it stands, nonetheless.
Namibia is a young country that has been trying to get the critical laws passed for the society to function and provide for the citizens. So where did it find the time to legislate against homosexuality?
Well, turns out it didn’t need to find the time.
When I was beginning my legal studies in England back in 1998, I learnt in my criminal law course that “sodomy”, as well as “gross indecency” (code for non-penetrative sexual acts between men), were still crimes in England. The exception was that if only two men, who were both over 21, were involved and it all happened in private, then it was ok. In 2000 the age of consent was lowered to match that for heteros, but group gay sex in a public toilet remains illegal to this day. Famous British men have been convicted for homosexuality in trials that can only be described as political, e.g. the playwright Oscar Wilde in 1895 and physicist (and genius) Alan Turing as late as 1952.* Shame on the nation.
However, even bigger shame on the nation that this insidious and hateful law was one of the most lasting exports from the motherland to the rest of the British Empire. Have you noticed the fact that the current wave of public homophobia has inflicted hardly any countries in Francophone Africa,** but only former British colonies? Well this is in large part why. The Napoleonic Code did not criminalise homosexuality. When the newly independent West African countries began replacing and complementing that with their own laws, they had more important fish to fry than regulate what consenting adults could or could not do in their bedrooms.
Not so in former British colonies. These laws were exported to other parts of the world with the view of bringing European Christian morality to the indigenous populations.*** As a result, rather than having to make the effort to legislate against homosexuality, former British colonies should actually have taken positive steps to DE-criminalise it upon independence. Again, they presumably had more important questions on their plates. So here we are, in a situation where half of the just under 80 countries that still criminalise homosexuality do so on the basis of British colonial legislation (which has in some countries been updated and amended, but still).
Namibia inherited British legislation in a roundabout way. South Africa became a British colony in 1806, but it retained the Roman-Dutch common law, which criminalised homosexuality. Three years later the Dutch (and their colonies) abolished the law, but the British rulers of South Africa were keen to keep it, and so it also became part of the laws of Namibia when the country, known as “South-West Africa” back then, became South Africa’s mandate after World War I. Pre-independence laws were retained upon independence, as the country couldn’t exactly start from zero as far as legislation was concerned. So there it still is, the crime of “sodomy”.
I ranted a few weeks ago that I though it commendable that Namibians appeared in general less bitter towards their former colonial oppressors and more forward-looking than Kenyans. Well the exception is the gay community. The Brits have a lot to answer for to the Kenyan as well as the Namibian sexual minorities for making their lives more difficult and providing the breeding ground for the current wave of homophobia that is sweeping across parts of Africa.
(The key facts in this rant come from two excellent reports on the subject of homosexuality and the British empire, a short and engaging one by Michael Kirby which can be found here, and a comprehensive one by the Human Rights Watch available here.)
*This can be compared with the 5-year jail term handed down in Malaysia in March this year to opposition politician Anwar Ibrahim for sodomy, after his party gave its best performance in the polls in the December 2013 elections.
**Or in former Belgian, Portuguese, Spanish, Dutch or German colonies for that matter.
*** Robert Mugabe and other nutjobs appear to fail to see the irony when they rant against homosexuality as “un-African”, or a “white man’s disease”, thus defending the colonial laws.