Ombudsman John Walters says the LGBTQ+ community is not proactive enough to protect their rights and needs to do more.
Walters expressed this sentiment during a round-table discussion in Windhoek on Monday.
The discussion, which was organised by lesbian, gay, bisexual, transgender and queer (LGBTQ+) advocacy organisation OutRight Namibia (ORN), brought together various stakeholders to discuss gender-based violence and human rights for marginalised groups and communities.
Walters pointed out, in no uncertain terms, that the country's Combating Domestic Violence Act does not make provisions for non-traditional and non-conforming couples.
He said there is nothing explicit that protects the LGBTQ+ group whatsoever.
"As far as I know, you will not find a single legislation in our country, not in our Constitution and nothing in common law," he said.
He also pointed out that there is a general lack of knowledge among law enforcement officers on how to deal with assault cases involving LGBT+ individuals.
"There is a general lack of understanding of the law by enforcement officers, lack of knowledge and lack of understanding on how to protect the rights of all Namibians," he stated.
However, Walters believes that 'the time is right' for Namibia to revisit common law and strive towards reforms such as the decriminalisation of the sodomy law.
The Ombudsman said Namibia was presented with a golden opportunity to have the highest court in the country to categorically spell out equal rights inclusive of the rights of the LGBTQ+ community.
He made reference to the Frank case of 2001, in which Namibian national Elizabeth Khaxas and her German partner Elisabeth Frank sued the government to have their union recognised so that Frank could lawfully reside in Namibia.
While Frank was granted a residence permit, the couple's marriage was not recognised within the law.
Walters believes the case was wrongly decided.
"Twenty years down the line, I think that we [LGBTQ+ community and himself] are not proactive enough. This case was the last legal challenge through to the LGBTQ+ community, so why is it that we had to wait 20 years and we have still done nothing?" he questioned. Recently, three other couples have legally challenged the government to have their marriages lawfully recognised in Namibia.
In 2017, Namibian Johann Potgieter and his South African partner Daniel Digashu also took their case to the Supreme Court.
In 2018, Namibian Anette Seiler-Lilles and her German partner Anita Seiler-Lilles also filed a case to have their 2017 marriage recognised.
Similarly, Namibian-born lawyer Anita Grobler and her South African partner, Susan Jacobs, also brought their case before the courts in 2018.
In all these instances, the couples have challenged the courts for marital recognition as the lack of this recognition hinders the process of obtaining residence rights for the foreign partners.
In June this year, The Namibian reported that High Court judge president Petrus Damaseb had directed that a full bench of three judges be designated to hear all pending cases in which same-sex marriages are an issue.
The director of ORN, Ricardo Mensah, concurred with Walters, stating that from the perspective of leaders in activism and organising, there can sometimes be a lack of oversight.
"Where maybe we are falling short in being very explicit on [provisions for] certain minorities [... ] it's our work as communities and organisations to highlight and bring this to the fore so that we can remedy or fix those things," he said.
Activist and ORN board member Conny Samaria explained that while he too questioned the proactiveness of leaders within the community, it is important that the efforts reach all corners of society.
"For far too long we have seen how we have been thinking of the country not being ready for a legal reform and redress agenda, and we have been focusing on the very smaller, low- hanging fruit," he said.
"The challenge, I think, the leadership of the LGBTQ+ community is, are we ready to lead our community in the right direction? If we are not able to make bold, robust steps and statements within this country, we are not going anywhere."
Pointing out that even with first lady Monica Geingos who recently made a very progressive statement, that Namibia would soon follow the example of countries like Botswana who have repealed their sodomy law, Samaria said few local LGBTQ+ organisations and leaders had jumped on the bandwagon. The stakeholders and community members who participated in the discussion asserted that the community needs to start taking more tangible action, and that bold leadership will be necessary in achieving that.