Namibia: Hate Speech Not Defined As an Offence - Ombudsman

Calls for the Office of the Ombudsman to intervene and investigate the Swapo Party Youth League's (SPYL) alleged incitement of violence through homophobic rhetoric may need to take another direction, as the Namibian Constitution does not define hate speech as an offence.

This is according to ombudsman John Walters in response to a petition filed by the Namibia Equal Rights Movement (Nerm) to have Swapo's youth wing taken to task for 'homophobic hate speech'.

SPYL secretary Ephraim Nekongo last month issued a statement urging members of the ruling party serving in the National Assembly to stop wasting their time discussing matters pertaining to homosexuality in Namibia because it is "satanic".

Nerm, which is a coalition of individuals and about 17 civil society organisations that advocate the rights of sexual and gender minority groups in the country, last week petitioned the Office of the Ombudsman to intervene in what they are calling 'state-sanctioned homophobia'.

As of yesterday, the petition had garnered close to 6 000 signatures.

The petition pin-points two matters that need the urgent attention of the ombudsman's office. First, the group wants the office to intervene and investigate SPYL's incitement of violence through homophobic hate speech. Second, it requests the office to intervene and investigate the Ministry of Home Affairs, Immigration and Safety and Security for abuse of power and the minister's misuse of public policy and public office in violating LGBTQ+ human and constitutional rights.

On Thursday, Walters confirmed receipt of the petition. However, he told The Namibian that hate speech is not defined as an offence in Namibia.

"You can only refer to derogatory words, which may boil down to hate speech in your perception. Then you can sue the person for civil defamation. The other option is to go the criminal route and file a complaint of crimen injuria," he said.

Crimen injuria refers to the act of "unlawfully, intentionally and seriously impairing the dignity of another". Nonetheless, it is not regarded as a serious offence, Walters said.

The leaders of the movement want Nekongo's statement investigated for possible incitement of violence against minority groups and appropriate action taken against him.

However, Nekongo's sentiments are only the tip of the iceberg.

The coalition was formed in March this year on the heels of a same-sex couple submitting an urgent application for their newborn twins, born through surrogacy in South Africa, to be issued emergency travel documents to enter Namibia.

The government demanded that the same-sex couple, Namibian citizen Phillip Luhl and his Mexican partner, Guillermo Delgado, prove parentage through DNA tests to establish that the newborns were indeed Namibian by descent. LGBTQ+ activists and allies interpreted this particular requirement as disproportionately targeted at the couple because they are two men in a union.

"As elected representatives of the Namibian people, it is disheartening to witness the silence from our members of parliament in the face of such violent discrimination," the group said in its petition submitted to the Office of the Ombudsman and the National Assembly.

Asked how his office plans to respond, Walters said the petition and specific requests needed to be assessed further. He suggested the need for a holistic approach to the LGBTQI+-related complaints lodged at his office.

"I will ask my colleagues to look at all the complaints, which we have received on LGBTQ+ issues, and address the holistically," he said.

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