Natasha Tibinyane
WINDHOEK, Jan 3 2006 (IPS) – A piece of legislation nearly 30 years old that outlaws male-to-male sodomy may, at first glance, appear more a target for gay rights activists than AIDS campaigners. Seen in the context of Namibia s prisons however, the 1977 Criminal Procedures Act raises questions that relate to both health and rights.
As a result of the act, condoms are not being distributed in Namibian jails: to do so would amount to condoning sex between men in contravention of the law, says government, even if it had the benefit of reducing HIV transmission. By giving them (prisoners) a condom you are telling them to go ahead and do it, Ignatius Mainga, a spokesman for the Ministry of Safety and Security s prison services, told IPS.
While he did not deny that sodomy was a feature of life in Namibia s jails, Mainga maintained it was not a regular occurrence and that it typically took place between partners who had a relationship before entering prison. No instances of rape had ever been reported to prison authorities, he added.
I believe that with sodomy the majority of cases are consensual, and the information we get on the ground is that inmates are against condoms in prison. They are married and engaged men who don t want to be seen as having sex with other men, he noted.
Mainga said that programmes were in place to show prison inmates how to avoid contracting HIV. With the latest official statistics putting national prevalence at 19.7 percent, however, campaigners such as Michaela Hübscle would prefer to see a more practical approach taken to AIDS prevention in jails.
A former deputy minister at the now defunct Ministry of Prisons and Correctional Services, Hübscle is a staunch advocate for the distribution of condoms in jails and the decriminalisation of sodomy.
It s not that I want to promote sodomy, but we do have a sub-culture in prison whether we like it or notàPeople will have partners, especially the long-timers. They are human beings after all and can t masturbate forever, she says.
In contrast to Mainga s assertion that prisoners would prefer condoms to remain taboo, Hübscle notes that during her term at the ministry inmates made several requests for condoms. However, she found it impossible to convince government that distributing condoms did not amount to promoting sodomy despite receiving some support from the Ministry of Health and Social Services.
We are sitting on a time bomb. The prevalence rate will increase if we do not protect those who enter prison negative, and those who are positive from re-infection, Hübscle concludes. She now runs a non-governmental organisation called Criminals Return Into Society (CRIS).
IPS was unable to obtain statistics from government about HIV prevalence in jails.
A former prisoner who now works at CRIS, Harold Kamatuka, also takes issue with Mainga s assertions notably the claim that rape does not occur in prison. There is a lot of aggression in prison, he says. People are traumatised, and if conjugal visits are implemented it will decrease the anger inmates have and help with conflict resolution.
Kamatuka believes that parliament s standing committee on legal affairs should be lobbied to visit jails, so that legislators can see for themselves that condoms are needed: Out of fear of intimidation, prisoners will not rise up to demand condoms. We need enlightened people who will implement modern prison policies.
Another school of thought holds that legal action is necessary.
Ian Swartz, director of The Rainbow Project (TRP), a group that lobbies for the rights of sexual minorities, believes government should be taken to court over male-to-male sodomy legislation.
How is it that with a history like ours where people were dehumanised, we 15 years after independence still have a situation where government decides who you should have sex with, and criminalises sexual behaviour between two consenting adults? he asks.
Namibia gained independence in 1990, more than two decades after the South-West Africa People s Organisation SWAPO began a struggle for autonomy. The country was formerly named South-West Africa.
More honesty over male sex is also needed to tackle abuse in prisons, Swartz adds.
We know that sex and rape happen in prison. Although we can t confirm it, we hear horrific stories of wardens selling younger inmates to older ones. It needs to be made a constitutional issue, he says.
But, in a reflection of just how sensitive the debate about sodomy and homosexuality is in Namibia, The Rainbow Project does not want to be the organisation that makes legal history.
We do not want that link to be made between sodomy and TRP. In 2006 we will look at the country s human rights coalition and see what we are able to do, but as TRP alone there is no chance that we will have the law scrapped, notes Swartz. (While sodomy is illegal in Namibia, homosexuality is not although the practice is frowned on.)
The Legal Assistance Centre (LAC), based in the capital of Windhoek, has adopted a similarly cautious stance.
Pushing for the scrapping of the sodomy law would jeopardise us pushing for other rights and freedoms, says LAC Director Norman Tjombe. It is frustrating because there are so many things we have to offset; it is sort of defeatist.
However, he is of one mind with other campaigners in believing that prisons are a breeding ground for HIV, and that condoms would help curb the AIDS pandemic in Namibia s jails.
In cases where it is consensual, whether inside or outside of prison, the state has to allow consenting adults to make their choices, says Tjombe.
