NAME: SIRKKA NANHAPO

STUDENT NUMBER:221147993
CODE:JHR3761 HUMAN RIGHTS

LAW TOPIC: VALIDATE AND RECOGNICE LGBTQ COMMUNITY RIGHTS

INTRODUCTION

In Namibia, where they face severe obstacles to their dignity and rights, LGBTQ+
people have been the subject of considerable debate and examination. In this context, it
is crucial to think about whether the rights in question in this scenario are covered by
Chapter 3 of the Namibian Bill of Rights and, if not, how they might be interpreted into
the Constitution.
In addition, it's crucial to consider who will be affected by the Bill of Rights in this
situation and why. Understanding the scope, content, and pertinent General Comments
that provide guidance on the interpretation of human rights in the context of sexual
orientation and gender expression is necessary for this.
It is also necessary to take into account the 4AQ requirements as well as the human
rights obligations that are relevant in this situation, such as the duty to respect, protect,
and uphold human rights. The International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Economic, Social, and Cultural Rights
(ICESCR) are two international human rights treaties that provide the basis for these
commitments.
In order to comprehend the human rights consequences of discrimination and violence
against LGBTQ+ people in Namibia and to create practical defense plans for their rights
and dignity, a thorough understanding of these concerns is required.

LGBTQ RIGHTS

The rights of the LGBTQ community are not specifically included in the Namibian Bill of
Rights, which is 1Chapter 3 of the Namibian Constitution. However, the right to equality
and to be free from discrimination is protected by the Constitution, and this might be
interpreted to include the rights of LGBTQ people.
The Namibian Constitution states in Article 10 that "all persons shall be equal before the
law and shall be entitled to the equal protection of the law." The Namibian High Court
has interpreted this equality principle to include the rights of LGBTQ people. The High
Court determined that everyone is covered by the constitutional right of equality and
non-discrimination, regardless of their sexual orientation, in the case of 2McComas and
Others v. Minister of Home Affairs and Others.

1 The Namibian Constitution

2McComas and Others v Minister of Home Affairs and Others, Case No. A 310/2013 [2015]
NAHCMD 276 (26 October 2015)
The High Court was asked to decide whether the 3Immigration Act, which forbade the
entry into Namibia of anybody who had performed a homosexual act, was constitutional
in the case of McComas and Others v. Minister of Home Affairs and Others. Two foreign
nationals who had been denied entry into Namibia on the grounds of their sexual
orientation were the applicants in this case.
According to the High Court, the Immigration Act discriminated against certain groups
and went against the constitutional prohibition against discrimination. The Court stated
that discrimination based on "sex, race, color, ethnic origin, religion, creed, or social or
economic status" is prohibited by the Constitution. The court ruled that this list was not
exhaustive, and discrimination because of sexual orientation was also prohibited.
The court additionally ruled that the Immigration Act infringed the constitutionally
protected right to free movement. The Act was found to be excessively broad in its
application by the Court since it made no distinction between homosexual actions that
were consenting and those that were not.
Additionally, Article 8 of the Constitution guarantees the protection of human dignity,
which is a universally recognized fundamental right. The right to human dignity, which
can also apply to LGBTQ rights, has been ruled by the Namibian High Court to be a
crucial aspect of the right to privacy. The High Court ruled that the prosecution of
consenting same-sex sexual behavior violates people's rights to privacy and dignity in
the case of 4LM and Others v. Minister of Home Affairs and Others.
The High Court was asked to weigh the constitutionality of the provisions of the Criminal
Procedure Act, which made consenting same-sex sexual behavior illegal, in the case of
LM and Others v. Minister of Home Affairs and Others. Three guys who had been found
guilty of having sex with each other were the applicants in this case.

The High Court ruled that the Constitution's protections for the right to privacy and
human dignity were infringed by the prosecution of consenting same-sex sexual
behavior. According to the Court, criminalizing same-sex relationships is a holdover
from colonialism and has no place in a multicultural, democratic society.
The Court further determined that because it discriminated against people based on
their sexual orientation, the prohibition of same-sex behavior violated the rights to
equality and non-discrimination. The Court stated that regardless of sexual orientation,
everyone has the right to equality and non-discrimination under the Constitution.
The Namibian High Court acknowledged that the rights of LGBTQ people to equality,
non-discrimination, and human dignity are guaranteed by the Constitution in both of
these cases. The Supreme Court ruled that laws and practices that discriminate against

3Immigration Act, No. 2 of 1993

4LM and Others v Minister of Home Affairs and Others, Case No. A 16/2018 [2018] NAHCMD
238 (12 December 2018)
LGBTQ people are unconstitutional and that it is against the law to discriminate on the
basis of sexual orientation. In summary, although though the rights of the LGBTQ
community are not mentioned in the Namibian Bill of Rights, they are implied by the
constitutional protections for equality, non-discrimination, and human dignity. The
Namibian High Court has already ruled that these principles apply to LGBTQ people
and that discriminatory policies that contravene these rights must be abandoned.

THE SCOPE CONTENT AND HUMAN RIGHTS OBLIGATIONS APPLICABLE TO

LGBTQ COMMUNITY

The Namibian Constitution and international human rights law, particularly 5General
Comments issued by treaty bodies, establish the scope and content of the rights
applicable to the LGBTQ community.
All people, including those who identify as LGBTQ, have a fundamental right to equality
and freedom from discrimination. 6The International Covenant on Civil and Political
Rights, to which Namibia is a signatory, forbids discrimination based on sexual African
orientation, according to General Comment No. 20 (2009) on non-discrimination by the
United Nations Human Rights Committee. This indicates that protection against
discrimination based on sexual orientation and gender identity is part of the right to non-
discrimination.
Another fundamental right that safeguards people's freedom to make private, intimate
decisions without unwarranted intervention is the right to privacy. In 7General Comment
No. 34 (2011), the 8UN Human Rights Committee said that sexual orientation and
gender identity are protected under the right to privacy, and that it is the responsibility of
states to prevent discrimination against people based on these factors. This includes
preserving the privacy and secrecy of the personal data of LGBTQ people.
For LGBTQ people, having the ability to express themselves and associate with others
is crucial because it enables them to organize and fight for their rights. General
Comment No. 34 (2011) of the United Nations Human Rights Committee emphasizes
that nations should not impose restrictions on people's freedom of expression and

5 United Nations Human Rights Committee. (2009). General Comment No. 20: Article 7
(Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment)
6 International Covenant on Civil and Political Rights (ICCPR), G.A. Res. 2200A (XXI), 21 U.N.

GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), entered into force Mar. 23, 1976.
7 UN Committee on Human Rights, 'General Comment No. 34: Article 19: Freedoms of Opinion

and Expression' (12 September 2011) UN Doc CCPR/C/GC/34 para __.

8UN Human Rights Committee, 'International Covenant on Civil and Political Rights' (16
December 1966) UN Doc. A/6316 999 UNTS 171.
association because of their sexual orientation or gender identity. This includes enabling
LGBTQ people to speak out in public and engage in discussions without fear of
retaliation.
States have a responsibility to respect, safeguard, and uphold the human rights of all
people, including those who identify as LGBTQ, and this duty extends to LGBTQ rights.
For the LGBTQ community, the "4AQ obligations"—to respect, protect, promote, and
uphold human rights—are important.
States are required to protect human rights, which means they can't impede how
anyone, especially LGBTQ people, exercise their rights. This involves respecting
people's privacy, freedom of expression, and association without discriminating against
them because of their sexual orientation or gender identity.
States are required to take action to stop violations of human rights by third parties,
including private individuals and organizations, under the commitment to protect human
rights. This entails taking action to stop hate crimes and other types of violence against
LGBTQ people as well as making sure that those responsible are held accountable.
States have a responsibility to advance human rights, which requires them to take
action to foster a culture that values and defends those rights. Promoting acceptance
and respect for variety, especially that based on sexual orientation and gender identity,
is a part of this.
States are required to take proactive measures to guarantee that people can exercise
their human rights under the commitment to respect human rights. In addition to
providing access to services like healthcare and education, this entails creating laws
and programs that advance equality and anti-discrimination.
The right to equality and non-discrimination, the right to privacy, and the right to
freedom of expression and association are all included in the extent and content of the
rights that apply to the LGBTQ community. The rights of LGBTQ people, as well as the
rights of all people, must be respected, protected, promoted, and fulfilled by the state.

INFRINGMENTS JUSTIFICATIONS OF INFRINGMENTS AND APPROPRIATE

REMEDIES FOR THE LGBTQ COMMUNITY HUMAN RIGHTS

Namibia is a signatory to many international human rights treaties, such as the 9African
Charter on Human and Peoples' Rights (ACHPR) and the International Covenant on
Civil and Political Rights (ICCPR). Both laws forbid discrimination based on sexual

9African Charter on Human and Peoples' Rights (ACHPR). Adopted 27 June 1981, OAU Doc.
CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 October 1986.
orientation or gender identity and require states to uphold the human rights of all people
without exception.
However, there have been many instances of discrimination, harassment, and violence
against the LGBTQ+ population in Namibia. In Namibia, for example, LGBTQ+
individuals frequently experience violence and discrimination in the areas of
employment, education, and healthcare, according to a 2018 study by 10Amnesty
International. According to the research, access to healthcare services by LGBTQ+
people is frequently denied by healthcare providers, and police officers frequently detain
people for engaging in same-sex sexual activity.
According to the survey, LGBTQ+ people in Namibia experience discrimination in
several spheres of their lives, including work, education, and healthcare. Because of
their sexual orientation or gender identity, healthcare practitioners frequently refuse
LGBTQ+ people access to healthcare services including HIV testing and treatment. The
options accessible to LGBTQ+ people are further limited by discrimination in education,
as certain institutions refuse to admit or dismiss students based on their sexual
orientation or gender identity. Similar to this, prejudice in the workplace reduces career
chances for LGBTQ+ people, and some businesses have been known to exclude them
from hiring or promotion processes.
The research also calls attention to the problem of police intimidation and arrests of
LGBTQ+ people for same-sex sexual activity. Police in Namibia have been known to
harass, threaten, and arrest LGBTQ+ people using laws that make same-sex sexual
activity illegal. Such restrictions foster a culture of prejudice and intolerance in addition
to violating the human rights of LGBTQ+ people.

Justification of infringement of human rights:

It is a difficult legal question to justify the violation of human rights since it must be
carefully balanced with the legitimate interests of the state or society at large. The
government and other actors have frequently used cultural or religious excuses in the
context of LGBTQ+ rights in Namibia to excuse the violation of those individuals' human
rights. For instance, the Namibian Constitution's Article 14(1)(b) makes consensual
same-sex sexual intercourse a crime, punishable by up to seven years in prison. This
clause has been supported by the Namibian government on the grounds that it reflects
the moral principles of Namibian society.
Human rights activists, however, have harshly criticized such reasons as discriminatory
and in violation of global human rights norms. “Cultural or religious justifications cannot

10Amnesty International, "We'll Show You You're a Woman": Violence and Discrimination
Against Black Lesbians and Transgender Men in South Africa and Namibia (London: Amnesty
International, 2018), 33.
be used to justify restrictions on human rights, including the right to freedom of
expression and the right to be free from discrimination,” according to General Comment
No. 34 of the United Nations Human Rights Committee. Similar to this, the 11African
Commission on Human and Peoples' Rights has called on states to make sure that
cultural or religious justifications are not used to justify human rights violations against
LGBTQ+ people in its resolution on the protection against violence and other human
rights violations against persons based on their real or imputed sexual orientation or
gender identity.
In addition, the Namibian Constitution itself upholds the rights to human dignity, privacy,
and freedom of expression, as well as to equality and against discrimination. The
African Charter on Human and Peoples' Rights and the International Covenant on Civil
and Political Rights, both of which Namibia is a party, also contain stipulations
pertaining to these rights.

Appropriate remedies
The LGBTQ+ population in Namibia suffers from numerous and significant human rights
breaches, and it is crucial that the right solutions are put in place to address them. Legal
and policy changes, awareness-raising efforts, and capacity building for law
enforcement and healthcare professionals are the best treatments in this situation.
First and foremost, legislative and regulatory changes are essential to address the
breaches of human rights that the LGBTQ+ community in Namibia is subjected to. The
Namibian government should enact legislation that safeguards against discrimination
based on sexual orientation and gender identity and remove laws that prohibit same-sex
sexual activity, such Section 14 of the 12Sexual Offences Act. The 13Universal
Declaration of Human Rights, which affirms the right to equality and non-discrimination
regardless of sexual orientation or gender identity, is in accord with these legal and
policy changes.
Secondly, the promotion of acceptance and tolerance of the LGBTQ+ population in
Namibia can also be greatly aided through awareness-raising efforts. To encourage a
culture of respect and understanding towards the LGBTQ+ population, such initiatives
can be led by civil society organizations, religious leaders, and the government.
Additionally, by raising awareness of LGBTQ+ people's rights, these initiatives can
assist debunk stereotypes and prejudices about them.

11 African Commission on Human and Peoples' Rights, "Resolution on the Protection against
Violence and other Human Rights Violations against Persons on the Basis of their Real or
Imputed Sexual Orientation or Gender Identity," ACHPR/Res. 275 (LVI) 2015, para. 4.
12 Sexual Offences Act,32 of 2003

13 Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (1948).
For instance, Namibia's Ministry of Justice has acknowledged the value of public
awareness initiatives in advancing the rights of LGBTQ+ people. The Ministry reported
in 2018 that it had 14"conducted a public education campaign aimed at sensitizing
society to the rights of LGBTI persons, and to address stigma and discrimination against
LGBTI persons." In addition, a number of public outreach initiatives were carried out by
the Namibian Ombudsman's office in 2019 with the goal of educating people about the
legal protections available to LGBTQ+ people as well as their rights.
Thirdly, building the capacity of law enforcement officers and healthcare professionals is
crucial to ensuring that they have the skills and information required to offer the
LGBTQ+ community non-discriminatory services. This includes instruction on the civil
rights of LGBTQ+ people and how to deliver care that is sensitive to their needs while
being culturally competent. Civil society organizations and international organizations,
including the World Health Organization and the United Nations Development
Programmed, can lead capacity building programs.
Lastly, another crucial remedy for addressing human rights breaches is offering legal
assistance and support to LGBTQ+ people who have been the victims of violations.
Legal assistance can assist victims in obtaining justice and bringing offenders to justice.
Additionally, it can give victims the tools and encouragement they need to recover from
the pain of discrimination and abuse and rebuild their lives.
Numerous groups in Namibia offer support and legal assistance to LGBTQ+ people who
have suffered abuses of their human rights. For instance, the Legal Assistance Centre
(LAC) offers marginalized populations, such as LGBTQ+ people, free legal help and
support. The LAC has also taken part in advocacy campaigns to advance the rights of
LGBTQ+ people and oppose discriminatory policies.
The African Commission on Human and Peoples' Rights has acknowledged the
significance of legal assistance in ensuring everyone has access to justice on a global
scale. The Commission urged states to "provide legal aid and assistance to victims of
such violations, including victims of discrimination on the basis of real or imputed sexual
orientation or gender identity" in its Resolution on the Protection against Violence and
Other Human Rights Violations Against Persons on the Basis of their Real or Imputed
Sexual Orientation or Gender Identity.

CONCLUSION

United Nations Human Rights Council, Report of the Working Group on the Universal Periodic
14

Review: Namibia, UN Doc. A/HRC/38/11 (2018), para. 114.

In conclusion, despite legal safeguards offered by the Namibian constitution and
international human rights law, the LGBTQ+ population in Namibia experiences severe
human rights abuses, such as discrimination, harassment, and violence. Under no
circumstances is it appropriate to violate their human rights. Namibia has to take
affirmative action to solve this problem, safeguard the rights of LGBTQ+ people, and
stop prejudice and violence against them. Educating the public about LGBTQ+ people's
human rights and promoting acceptance and tolerance are some potential remedies.
Others include offering legal assistance and support to LGBTQ+ people who have been
the victims of human rights violations and making sure that healthcare professionals
and law enforcement agencies are trained to respect LGBTQ+ people's rights. Namibia
must adopt these steps to uphold its responsibilities under international human rights
legislation and to guarantee that everyone can live with dignity, free from prejudice, and
without experiencing violence, regardless of their sexual orientation or gender identity.
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McComas and Others v Minister of Home Affairs and Others, Case No. A 310/2013
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main-division/2015/276

Immigration Act, No. 2 of 1993

LM and Others v Minister of Home Affairs and Others, Case No. A 16/2018 [2018]
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division/2018/238
ICCPR, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316
(1966), entered into force Mar. 23, 1976.
UN Human Rights Committee, 'International Covenant on Civil and Political Rights' (16
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Sexual Offences Act, No. 32 of 2003
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UN Committee on Human Rights, 'General Comment No. 34: Article 19: Freedoms of
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