Same-sex unions are currently not performed in Namibia. The Supreme Court ruled 4–1 on 16 May 2023 that same-sex marriages concluded outside of Namibia should be recognised for the purpose of residency rights. A bill seeking to overturn the ruling is currently pending in the Parliament of Namibia.
Historical recognition of same-sex relationships
Christianity was only introduced to Namibia in the late 19th century. It is believed that same-sex unions were tolerated in pre-colonial and pre-Christian Namibia. In the 1920s, German anthropologist Kurt Falk reported same-sex marriage ceremonies among the Ovambo, Nama, Herero and Himba peoples. Among the Herero, erotic friendships, known in Otjiherero as , between two people regardless of sex were also common, and typically included anal intercourse. The Nama people recognised a similar "mutual pact of friendship" which involved same-sex sexual relations.
Legal history
Background
The Marriage Act (Act 25 of 1961), enacted by the Parliament of South Africa when Namibia was still South West Africa, does not explicitly prohibit the recognition of same-sex marriages; neither does it explicitly define marriage. However, the law has been interpreted not to recognise same-sex unions. When Namibia became independent in 1990, it retained all South African laws unless explicitly repealed or modified by an Act of Parliament. In addition, the Constitution of Namibia does not explicitly permit same-sex marriages and states in Article 14(2):
Article 14(1) states that men and women of marriageable age may enter into marriage irrespective of their race, colour, religion, ethnicity, creed, social or economic status, or nationality. Furthermore, men and women are entitled to the same rights and obligations, whether during the marriage or at its dissociation. Article 14(3) places the family as the "natural and fundamental unit of society", entitled to special protection by the State.
Anal intercourse among men remains illegal in Namibia as per the Criminal Procedure Act (Act 51 of 1977). Although nobody has ever been convicted, this "crime" is occasionally reported to the police, resulting in arrests and fingerprinting, and instilling fear in the LGBT community.
Political positions
John Walters, the Ombudsman of Namibia, expressed his support for same-sex marriage in August 2016. SWAPO, the ruling party since independence, is opposed to same-sex marriage. Since Yvonne Dausab became the Minister of Justice in 2020, the SWAPO-led government has softened its position, suggesting that the cabinet discuss scrapping the sodomy law. Of the other parties represented in the Parliament of Namibia, the Christian Democratic Voice (CDV) and the Namibian Economic Freedom Fighters (NEFF) are staunchly opposed to same-sex marriage. The Popular Democratic Movement (PDM) is ambivalent on the issue.
Court cases
Chairperson of the Immigration Selection Board v Frank and Another
In the late 1990s, Elizabeth Khaxas and her German partner Erna Elizabeth Frank sued to have their lesbian relationship recognised in Namibia. Namibian law grants residency and citizenship to foreign nationals who marry Namibian citizens. However, as the couple's same-sex relationship was not recognised by law, Frank could not obtain permanent residency or citizenship. She applied for a permanent residence permit with the Immigration Selection Board twice, in 1996 and 1997. The Board rejected the application both times. The High Court ruled in favor of the couple in 1998, directing the Board to issue a residence permit to Frank. The Board appealed the decision to the Supreme Court. In Chairperson of the Immigration Selection Board v Frank and Another on 5 March 2001, the Supreme Court held that:
While the court ruled that Frank should be granted a permanent residence permit, which she received a year later, it did not rule in favour of recognising same-sex relationships by law.