Religion and human rights in Namibia

 Nico Horn
 BIur (Johannesburg), BTh (Hons) (UNISA), MA (Port Elizabeth), LLM (UNISA), PhD (Western Cape)
 Dean of the Faculty of Law, University of Namibia, Windhoek, Namibia
This email address is being protected from spambots. You need JavaScript enabled to view it.

 Edition: AHRLJ Volume 8 No 2 2008
  Pages: 409 - 431
 Citation: (2008) 2 AHRLJ 409-431
 Download article in PDF

Summary

Namibia is one of the most Christianised countries in Africa. Its Christian roots date back to the early nineteenth century, when the first German and Scandinavian missionaries arrived in the country. Before independence, the churches were radically divided between supporters of the struggle for independence (predominantly mainline black churches), so-called apolitical mainline white English-speaking churches and multi-racial charismatic churches and white Reformed and Pentecostal supporters of the apartheid system. After independence, the state did not interfere with the business of the churches. The threat that a SWAPO government would not honour Christian public holidays in an independent Namibia came to naught. The affluent white churches and new Pentecostal churches remained influential and played a strong role in the rejection of a pro-choice Abortion Act. Many churches also supported the government's (and the Supreme Court's) stance against protecting same-sex relationships. The churches also ignored the fate of the small Jewish community. Christians and other religious communities have experienced privileges not always associated with a secular state. However, in the last two years of President Nujoma's term as President, he declared the government's preferential treatment of the historical churches that supported the struggle (Lutheran, Anglican, Catholic and AME churches). While President Pohamba took a more reconciliatory stance, evangelicals and charismatics lost the privilege to preach on national radio. The churches remain sectarian in their interaction with other vulnerable communities. 

1.  The composition of the church in Namibia

Namibia is one of the most Christianised countries in Africa. Its Christian roots date back to the early nineteenth century, when the first German and Scandinavian missionaries arrived in the country. The London Missionary Society established the first foreign mission in Blydeverwacht in the south of Namibia in 1805. [1]  They were followed by the Wesleyan Missionary Society in 1820. From 1840 on, the Rhenish Mission took over the work of the London Missionary Society. The Rhenish missionaries were soon followed by Finnish Lutheran missionaries in the north.

The Catholic and Anglican Churches also started their missions among the Oshiwambo people in the second half of the nineteenth century. Klaus Dierks, a German who moved to Namibia and became a minister in the first Namibian cabinet, published an extensive history of Namibia on the internet. His description of the early Namibian history is a story of the settlement of Nama tribes in the south, the movement of the Ovahereros in central Namibia and their relationships with the Rhenish missionaries. [2]

The three Afrikaans Reformed Churches played an important role in pre-independent Namibia. The adherents of the Reformed Church (Gereformeerde Kerk) were the first organised white group from South Africa, and they settled in Namibia for a while on their way to Angola. The Dorslandtrekkers were conservative Calvinists who left the Zuid-Afrikaansche Republiek in the 1870s in search of a new frontier when they became disillusioned with the liberal excommunicated reformed minister-turned-president and his secularisation programmes. They initially requested the later war president Paul Kruger to lead them, but he declined and opted for ZAR politics in an attempt to make the Boer republic a Christian state. The Dorslandtrekkers stayed for a while in Rietfontein in the north of Namibia, before settling in Angola.  [3]  Although small in number, the Reformed churches became very influential after the occupation of South Africa during World War I and the eventual period of South African rule.

In the 1990s, Namibia was the African country with the highest percentage of Christians. More than 90% of the population identified themselves as Christians. [4]  Namibia is the only African country with a Lutheran majority. [5]  At the time of independence, only 2,5% of the population were Pentecostal and 8,9% Evangelical. [6]  The position has not changed dramatically in the last 15 years, and although there are no official figures available, [7]  it is possible that the church grew since independence. Many missionaries arrived in Namibia after independence, especially Pentecostals and charismatics, but not exclusively. Unlike the first wave of missionaries, the group of the late 1990s and early twenty-first century are predominantly from Africa, and most of them are black. They come from Nigeria, Ghana, [8]  Zimbabwe, Zambia [9]  and South Africa. [10]  The Universal Church of the Kingdom, a South American group, built a mega-church in the heart of Windhoek. [11]  

The north also sent their missionaries (or church planters, as they are now called) to Namibia. Several United States-based Pentecostal/charismatic denominations started churches, including the Potter's House, a radical conservative movement, [12]  and the Church of God in Christ, one of the oldest and biggest African-American Pentecostal Churches in the United States. Bishop Wahl Abrahams [13]  worked for a period under the leadership of an African-American group, the Full Gospel Church, which is not to be confused with the South African Full Gospel Church. After independence, the Namibian census forms no longer include sections on church affiliation. Consequently, many observers concentrate on the mainline churches and small, yet well-resourced, new missionary groups. The growth in the Pentecostal/charismatic movement is often ignored. A case in point is the US State Department's International Report on Religious Freedom. It does not even mention the Pentecostals as a significant group, while giving special attention to the small Church of Jesus Christ of Latter Day Saints (Mormons). [14] 

Most of the non-Christian religions organised only after independence, when adherents of the faith moved to Windhoek for diplomatic and business reasons. The exception is the Jewish community, who settled in the country at the beginning of the nineteenth century. Although the numbers declined after World War II, the synagogue is still in weekly use and the community is served by a lay leader. Muslims represent less than 1% of the population. [15]  With foreign assistance, they were able to build two mosques in the capital. The majority of the adherents are foreign diplomatic staff, but there are also nationals who converted to Islam in exile and Cape Malayan Muslims who settled in Namibia from the Cape as teachers and public servants. The Baha'i Faith came to Namibia as an evangelistic endeavour. They are few in number, but represent some influential business people and academicians.

2.  Protection of religion under the Namibian Constitution

Shortly before the United Nations (UN)-supervised independence elections in Namibia in 1989, someone distributed a decision of the Politburo of the major liberation movement, SWAPO of Namibia, making it clear that a SWAPO government would not honour Christian public holidays in an independent Namibia if it came to power. [16]  This radical SWAPO statement was consistent with several pro-socialist statements by the movement while in exile. SWAPO won the elections comfortably, although it did not get the expected two-thirds majority. The Constitution was drafted in a short time. It includes an article declaring Namibia a secular state. Article 1(1) of the Constitution reads as follows: 'The Republic of Namibia is hereby established as a sovereign, secular, democratic and unitary state founded upon the principles of democracy, the rule of law and justice for all.'

The Constitution was accepted unopposed by 71 of the 72 members of the Constituent Assembly. Only Mr Kosie Pretorius, representing Aksie Christen Nasionaal, (Action Christian National), an alliance between the old National Party and the Deutsche Aktion, abstained. Mr Pretorius later claimed that he abstained because, among other issues, he was against the idea of a secular state in a country where the majority of the citizens are Christians. [17]  However, the government was never neutral in its dealings with religion. In the application form for religious workers who want to be appointed as marriage officers by the state, [18]  applicants are asked if their church belongs to the Council of Churches. I shall return to the bias of government below.

The first Deputy-Speaker of the National Assembly, Dr Rev Z Kameeta, opened the first session of parliament with prayer. This practice continued while Dr Kameeta was a Member of Parliament. Nevertheless, the Constitution guarantees the right to culture, language and religion, freedom of conscience and belief and freedom to practise any religion and to manifest such practice. [19]  Religion is one of the categories listed in the non-discrimination clause. [20]

3.  Churches in pre-independent Namibia

Pre-independent Namibian churches can roughly be divided into four groups:

•      the members of the Council of Churches in Namibia (CCN), who supported the struggle for liberation. The Dutch Reformed Mission Church and the Evangelical Reformed Church in Africa (EGKA), sister churches of the white Dutch Reformed Church (NGK), were both members of the CCN. Fred Joseph and his Khomasdal congregation of the Apostolic Faith Mission actively supported the mission of the CCN, but the church was never a member, (possibly because the denominational structure of the AFM still gave the white leadership some power over the black churches). [21]

•      the so-called multi-racial Evangelical and Pentecostal/charismatic churches and some mainline English-speaking churches opposed to what was known as petty apartheid, specifically the  idea of separate places of worship for different ethnic groups. However, despite their multi-racial approach, they were, nevertheless, conservative and many of them opposed the liberation struggle vigorously. Many of the multi-racial Pentecostal churches actively supported the transitional government of national unity, instituted by South Africa in an attempt to create an international acceptable settlement in Namibia without involving the liberation movements, SWAPO and the South West Africa National Union (SWANU). [22]

•      the black Evangelical and Pentecostal churches who believe in the spiritual mission of the church. For them a political agenda for the church is unthinkable. The non-political church in apartheid Namibia was clearly a pipe-dream. [23]  This, however, does not mean that these churches were active supporters of apartheid. Mulondo has pointed out that many of the strong black-led Pentecostal churches in Namibia (Ebenaeser, Morewaak, etc) left the traditional white bodies, such as the Apostolic Faith Mission and the Latter Rain Movement, because of the apartheid structures of the church. [24]

•      the Afrikaans-speaking churches, specifically the three Reformed churches, the NGK, the Hervormde Kerk and the Gereformeerde Kerk and the prominent Pentecostal denominations, the AFM, the Full Gospel Church of God and the Pentecostal Protestant Church, who all supported the apartheid policies of the South African administration and the principle of separate ethnic churches.

The churches supported the status quo on many levels. At the beginning of the final negotiations for a peaceful settlement in Namibia, the white AFM District Council passed a resolution and wrote a letter to the Administrator-General stating that all the sections of the AFM opposed independence for Namibia. [25]  The resolution was, however, only the position of the white section, since the other two sections never discussed the issue. The coloured section, under the leadership of Pastor Fred Joseph, actively supported the independence process. [26] 

The NGK was, among other things, deeply involved in the founding of a theological institution, Windhoek Theological Seminary, to counter the progressive pro-independence Department of Religious Studies at the Windhoek Academy. [27]  All these churches maintained a whites-only membership. The Hervormde Kerk 'Kerkorde' declared that it was a church for white Afrikaners, while the AFM Constitution referred to white members and black, coloured and Indian adherents. [28]

Observers expected the new government to be anti-religion, faithful to its Marxist past. However, the fall of communism shortly before independence, the realities in the country (the vast majority of Namibians see themselves as Christians) and the support that SWAPO received from the CCN during the struggle gave SWAPO second thoughts. The radical decision of SWAPO in exile to abolish religious holidays came to naught. All the religious holidays were maintained. Even when South Africa later abolished Ascension Day as a public holiday, it was maintained in Namibia. Dr Zephania Kameeta, theologian, pastor and poet, became the Deputy-Speaker of the first National Assembly and the sessions of parliament were frequently opened with prayer.

4.  The survival of the Dutch Reformed Church and the rise of the Pentecostals

If the people expected a sudden change in the corridors of the new transformed Namibian Broadcasting Corporation (NBC), they were in for a surprise. In the religious department of the NBC, all the staff members of the old Southwest Africa Broadcasting Corporation were retained and nothing significantly changed. A Dutch Reformed Church (DRC) dominee, Rev Kobus Venter, remained the head of religious broadcasting, with a full-time religious broadcaster for television, and at least seven religious radio broadcasters, including some DRC dominees. With the assistance of Pastor Fred Joseph, who was appointed by government to serve on the first NBC board, Rev Venter created an advisory body for religious broadcasting at the NBC.

Rev Venter (no relation to Mr Piet Venter, the last Director-General of the South West African Broadcasting Corporation (SWABC)), was a staunch Evangelical and broadcasted sermons of controversial Pentecostal televangelist Jimmy Swaggart on national television to the dismay of his reformed colleagues. The vast majority of the advisory board members were representatives of Evangelical and Pentecostal/charismatic churches. The African Independent Churches, the Zionists and the Oruuanu Church [29]  were not invited. [30]  

By the time Kobus Venter left the NBC to become the pastor of the DRC in Okahandja, the influence and power of the DRC were firmly established. Granted, the basis for the power was no longer the government or some unwritten official ideology. But the precedents were created: The face of Afrikaans religious broadcasting was to be Dutch Reformed. Venter was succeeded by Nathan Kapofi, a Lutheran pastor, but several white DRC dominees remained prominent over the ethers of the Afrikaans service of national radio. [31]  Venter was less successful in bringing Evangelicals and Pentecostals to prominent positions in radio broadcasting. But his successor at the religious section of the influential religious television, John van Heerden, was a Pentecostal. Pentecostals and Evangelicals, although less prominent on the Afrikaans religious programmes, were well represented in the other language stations and on the NBC Religious Advisory Board.

The first five years of independence was a time of euphoria. National reconciliation was the buzz word. The government was not going to intervene in the internal affairs of the national broadcaster, especially not in a subject as sensitive as religion. But there were also signs that the government was not too comfortable with the strong DRC/Evangelical power base at the NBC. In the early 1990s, the Ministry of Broadcasting and Information gave directives to the religious department of the NBC to include other religions, including Islam, in their broadcasts. The issue was discussed by the advisory board. They came up with a broadcasting policy that excluded most new movements, such as the Church of the Latter Day Saints (Mormons), who came into Namibia in big numbers after independence, the Worldwide Church of God and Islam by playing the numbers card. Only movements with more than 500 members were allowed to broadcast. [32]  The policy guidelines were accepted by the NBC board. The idea of incorporating other religions died a natural death after that.

Rev Joseph was not re-appointed to the NBC board after serving one term, possibly because government wanted change in the religious department. However, the new team at the NBC did not change much in terms of religious broadcasting. All the religious programmes remained on radio, including broadcasts of services from local churches and a long three-hour television broadcast on Sunday mornings.

5.  The confrontation of state and religion in the constitutional era

5.1  Christian schools

The old church schools, mainly Anglican, Catholic and African Methodist Episcopal Churches, received subsidies from government after independence. [33]  However, government made it clear that they would not subsidise new private church schools. Their problem was not so much church control, but rather a fear that the old segregated white churches were using the Christian (or Reformed) tag to keep black children out of these schools. The suspicion was not without foundation. Shortly before independence, several white churches convinced the South African Administrator-General to privatise some of the prestigious white schools and hand them over to a consortium of churches. The plan failed when it was leaked to the press before the Administrator-General could privatise the schools.

The majority of the private Christian schools that came into being after independence came from the Reformed and Pentecostal ranks. The crisis in Namibian education (more than 40% of the grade 10 students failed in 2008) helps to keep private schools in business. Despite allegations that Christian schools are elitist or vestiges of the old unequal apartheid education, the schools will grow if segments of the population are not happy with government schools.

One cannot, however, help to be sceptical about the real motives behind Christian education in Namibia. In an investigation at Swakopmund Primary School, a former German-speaking government school, [34]  and the Christian Academy, a fundamentalist Christian school using the controversial American Accelerated Christian Education curriculum, it was found that a student in the former pays N$1 800 per year [35]  and a student at the latter N$ 1 000 per month. [36]  At the new Windhoek Gymnasium, a parent of a primary school student pays N$18 000 per year. Under the heading 'Values of the School,' its website stated that '(t)he school is consecrated to Jesus Christ and based on Biblical values'. [37]  The private church schools are only accessible the higher middle class and they make no attempt to take quality education to a broader section of Namibian students, or to assist the 10 000 grade 10 failures to get a place where they can repeat.

Government was never comfortable with the new post-independent Christian schools. The Constitution makes special provision for individuals or groups to establish private schools. [38]  Consequently, the government has no remedy to limit the number of private schools or to manage their racial composition. Founding President Sam Nujoma and other cabinet ministers have criticised the predominantly white Christian schools on several occasions, calling them racist. The attack was never on Christian schools per se and President Nujoma has always made it clear that he has respect for the contribution of the Lutheran, Anglican and Catholic schools. A case in point is a speech by the president on 23 June 2000. In the speech, President Nujoma made a clear distinction between the Anglican and Lutheran schools in the north, which he claimed are real Christian schools, and white private schools, which he said were racist and not Christian. [39]  Yet the church schools have never clashed with government and at no stage did government attempt to close them, mainly because the Constitution explicitly allows the right of every person to establish and maintain private schools. [40] 

5.2  The abortion issue

When Namibia became independent, the South African Abortion and Sterilisation Act (1975) dealt with legal issues of abortion. The Act outlawed abortion, allowing specified exceptions. Exceptions were strictly monitored and limited to the following circumstances:

   (i)  when a pregnancy endangers a mother's life or constitutes a permanent threat to her physical health;

  (ii)  when the continued pregnancy constitutes a serious threat to the mother's mental health;

  (iii)  when there exists a serious risk that the child will be born irreparably seriously handicapped (physically or mentally);

(iv)  when the pregnancy is the result of rape or incest;

  (v)  when the mother suffers from a permanent mental handicap that makes her unable to comprehend the implications of the pregnancy or bear the parental responsibility.

In 1996, government released a draft Abortion and Sterilisation Bill for discussion. The Minister of Health and Social Services, Dr Libertine Amathila, and the Permanent Secretary of the Ministry, Dr Kalumbi Shangula, campaigned for three years to convince the Namibian people that the Bill — following a strong liberal, pro-choice approach — was the way forward for Namibia. [41]  

The churches reacted immediately. The opposition to the Bill was overwhelming across denominational and confessional lines. In the north, the respected pro-SWAPO Bishop Kleopas Dumeni of the Evangelical Lutheran Church in Namibia supported the opposition, as did Former Secretary-General for the Council of Churches of Namibia and respected Lutheran pastor, Dr Ngeno Nakamhela. [42]  In April 1999, the Minister set out on a country-wide tour to address public meetings on the Bill. She only visited Otjiwarongo. The opposition was so strong that she cancelled her tour and declared that the Bill has been dropped because 99% of the population was against it. [43]  Women's groups objected to the tabulation of 99%, which was possibly an overestimation of the numbers of the pro-life group. The opposition to the Bill was nevertheless overwhelming.

In an editorial, the editors of The Namibian admitted that the vast majority of the population opposed the Bill, but blamed middle-aged male church leaders for the populist campaign against the legislation. The newspaper suggested that the abortion issue can be compared with the South African Constitutional Court case of S v Makwanyane, [44]  where the Court abolished the death penalty despite strong public support for it. [45]  In November 2002, the Minister stated again that abortion will not be legalised in Namibia for at least the next ten years, because of the strong opposition against it. [46]

The abortion issue was the first serious clash between government and the churches. In this instance, the churches who supported the struggle and those who were in cahoots with the South African occupational forces stood together. It was clear from the outset that the Catholic Church would not go against the Vatican's opposition to abortion. However, government hoped for the support of the leaders of the black Lutheran churches and the Anglican Church. Had they supported the Bill, government would in all possibility have pushed the legislation through.

5.3  New battlegrounds: Nujoma and the 'other' churches

The churches who did not support the struggle (which, in President Nujoma's mind, included all churches except the Anglican, Lutheran, Catholic and the AME Church), were, like the church schools, a bone of contention for the founding President. During a meeting with farmers in Northern Namibia in 2001, the President said that, while the Constitution recognises freedom of religion, he does not have to embrace Christianity since it is 'artificial' and a 'foreign philosophy'. President Nujoma then encouraged them to dump Christianity and worship the ancestral cattle God, Kalunga ya Nangombe. [47]  This was one of the few instances where Nujoma attacked Christianity without excluding the mainline denominations who supported the struggle. In this instance he addressed communal farmers in the heartland of the Lutheran Church. Yet, the President was only expressing a personal view, and he made sure everyone understood it as such when he also stated that the Constitution guarantees freedom of religion.

In June 2004, President Nujoma attacked the 'non-traditional churches' in Tsumeb, stating that they tried to mislead their followers. The President stated that the government only recognised the Catholic, Anglican and Lutheran churches. [48]  The Council of Churches reacted to the statement. Secretary-General Nangula Kathindi agreed that there may be some churches that are misleading the people. However, there are several churches affiliated to the CCN who do not fall in this category, Kathindi said and continued: [49]

The CCN membership includes the likes of the Anglican Diocese of Namibia, the Dutch Reformed Church in Namibia, the Protestant Unity Church (Oruuano), the Rhenish Church in Namibia, the United Congregational Church of Southern Africa, the United Methodist Church in Namibia, the Uniting Reformed Church in Southern Africa and the Methodist Church of Southern Africa. The Reformed Churches in South Africa (Gereformeerde Kerke) and the Apostolic Faith Mission in Namibia have observer status, while the Coptic Orthodox Church in Namibia is an associate member. The Pentecostal Protestant Church, the Ecumenical Institute of Namibia and the Young Women's Christian Association were all organisations affiliated to the CCN.

It is not clear what the President meant when he stated that only certain churches were recognised. One thing is sure: It cannot mean that these 'recognised' churches are state churches or enjoy any official status denied to other denominations. The Namibian Constitution not only guarantees freedom of religion; it also declares the Republic a secular state. It is possible that the President referred to some executive decision that the government would only invite pastors from the 'recognised' churches to officiate at government functions, such as the opening of parliament, state funerals, etc.

It is not clear what sparked the President's fury. Rumours had it that the President was annoyed by the new Evangelical and Pentecostal/charismatic churches that entered the country after independence. Some of these churches were not only growing at a tremendous rate, but the leaders also executed power over their followers. This is especially true of the Nigerian apostles and the South American bishops. Rev Kathindi's reference to the Dutch Reformed Church, the Apostolic Faith Mission and the Pentecostal Protestant Church did not help either. All these churches were staunch supporters of the apartheid system and practised it in their churches. The AFM and Pentecostal Protestant Church only unified shortly before the President's statement, and the Dutch Reformed Church is still separated from its black sister church in Namibia. While the CCN was willing to forgive and forget, the President was possibly not there yet. [50]  Later in 2004, the President aimed a second blow at the non-mainline churches. Some churches, he stated, spread HIV/AIDS by operating throughout the night. The target was the Pentecostal churches and their well-known 12-hour tarry meetings. [51]

In January 2005, shortly before President Nujoma stepped down, the NBC Director-General, Gerry Munyama, suspended all religious programmes on national radio and television. He stated that he was concerned 'about the way some devotions are conducted and wanted to revisit its guidelines to that effect'. He also said that it was his own decision and not influenced by any politician. [52]  The Director-General added that 'the situation was getting out of hand and that religion was getting out of the traditional way we know it'. [53]  It seems strange that the Director-General of the national broadcaster concerned himself with the content of the message presented by some churches, forgetting that Namibia was a secular state guaranteeing the right of its citizens to practise the religion of their choice.

The mainline churches were quick to agree that some control was necessary. From their responses, it seems as if the Pentecostals and charismatics were seen as the Jonas that caused the storm. Several church leaders and even some traditional Pentecostals supported Munyama's insistence on new guidelines. Dutch Reformed spokesperson Rev Clem Marais hinted in an interview with opinion magazine Signpost that the problem of the national broadcaster lay with the dangerous prosperity message of the Pentecostals and charismatics. [54]  In the same edition, some unnamed critics claimed that the real problem was with the fact that Pentecostals did not support the struggle for independence. Others claimed that the government was looking for an opportunity to follow Zambia's example and ban the Universal Church of the Kingdom. [55]  

If the government under President Nujoma had plans to act against some churches, it was overtaken by history. In March 2005, President Hifikipunye Pohamba succeeded President Nujoma as the second president of the Republic of Namibia. President Pohamba immediately opened his doors for the churches and even attended a morning service in the white Dutch Reformed Church. At the same time, the Ministry of Home Affairs issued a statement that Namibia had no intention of acting against the Universal Church of the Kingdom: [56]

President Pohamba, a confessing Christian, laid the issue to rest and the NBC's criticism faded away. The religious programmes went back on television and radio, although live church broadcast and televised church services were stopped and most Pentecostals and Evangelicals were no longer invited to take part in religious programmes. Not that it harmed the Pentecostals too much. The American religious broadcaster Paul Crouch brought his 24/7 television station, Trinity Broadcasting Network, to Namibia. Local representative Coenie Botha adds some local content (often Pentecostal church services) to its American Pentecostal/charismatic programmes and broadcasts on a free channel in Namibia.

5.4  The Rastafarian question: Illegal action and freedom of religion

Namibia has a small, but active Rastafarian community. The freedom of Rastafarians, who smoke cannabis, a prohibited substance in Namibia, as part of their religious liturgy, was raised in a criminal case. [57]  Rastafarians compare their use of the ganja plant with the Christian use of wine at the Eucharist. To criminalise their sacraments is a direct attack on their religion, and their freedom to worship God according to ancient cultic practices.

Sheehama, a well-known Namibian artist, was convicted in a magistrate's court of possession of cannabis. He admitted that he was in possession, but claimed that he was entitled to do so as part of the religious rituals of the Rastafarians in terms of his cultural and religious rights protected by the Constitution. He was nevertheless convicted.

The High Court had decided previously [58]  that the jurisdiction of the magistrate's courts did not extend to a claim brought in terms of article 25(2) of the Constitution. [59]  Unfortunately, the Court dismissed the appeal of Sheehama on technical grounds. Consequently, the conflict between constitutionally-guaranteed religious and cultural rights on the one hand and the legal system on the other has not been addressed.

5.5  Christian culture

Several old South African Acts made applicable in Namibia were based on Calvinist moral teaching. A case in point is the Publications Act of 1974. In terms of section 1 of the Act, the Publications Board, in applying the Act, 'the constant endeavour of the population of the Republic of South Africa to uphold a Christian view of life shall be recognised'. In a case that dealt with the sale of erotic and pornographic material, Justice Maritz made the following comment: [60]

In the same judgment, the Court looked at the extremely broad wording of two Acts: section 2(1) of the Indecent and Obscene Photographic Matter Act 37 of 1967 and section 17(1) of the Combating of Immoral Practices Act 21 of 1980. The first gave an extremely broad definition of both publication and the words 'indecent and obscene', while the latter worked with a broad interpretation of the phrase unnatural sex. While the Court did not look at the religious foundation of the two Acts, it made it clear that in setting legal standards to uphold standards of decency and morality in society, the basic constitutional principles, such as freedom of speech or their freedom to carry on any trade or business, cannot be ignored. The Court made it clear that, in determining the scope of decency and morality, the values of the conservative Christian community were not the benchmark, but the Constitution: [61]

5.6  The homosexual issue

Until the mid-1990s there was no indication that the Namibian government differed from the South African approach to the protection of sexual orientation. In one of the first Acts after independence, the Labour Act 6 of 1992, sexual orientation was listed as one of the non-discriminatory categories. [62]  The general expectation was that sodomy would soon be declared unconstitutional and that the past discrimination against homosexuals and lesbians would be declared unconstitutional in due course. However, in the middle of the 1990s, the President and some senior ministers verbally attacked homosexuals in public: [63]

The attacks were unexpectedly nasty and could even be seen as instigations to use violence against homosexuals.

The High Supreme Courts were confronted with the issue in March in the now-famous case of Elizabeth Frank, a German citizen and a SWAPO co-worker in Bremen, Germany during the struggle for independence. [64]  The High Court reviewed and set aside a decision of the Immigration Selection Board, refusing a permanent residence permit to Ms Frank, whose application for permanent residence was turned down twice. She alleged that her sexual orientation was lesbian and that she lived in a permanent relationship with another woman. If it was legally possible to marry, they would have done so. She felt that her lesbian relationship might have been the reason why her application for a permanent residence permit had been rejected. However, if her relationship with a Namibian citizen was a heterosexual one, she could have married and would have been able to reside in Namibia or to apply for citizenship in terms of article 4(3)(a) of the Namibian Constitution, she alleged. She said that the Board did not take this factor into account and therefore violated her right to equality and freedom from discrimination guaranteed by article 10, her right to privacy guaranteed by article 13(1) and protection of the family guaranteed by article 14 of the Constitution. 

As far as the relationship between Frank and her partner had a bearing on the review application, the High Court [65]  concluded that the respondent was wrong in his assumption that the respondent's long-term relationship was 'not one recognised in a court of law and was therefore not able to assist the first applicant's application'. This, the Court stated, is an incorrect statement of the law. The Court relied on Isaacs v Isaacs, [66]  where the learned judge found that a relationship where parties put all their assets, both present and any they may acquire in future, in a pool from which they pay expenses incurred by both, was a relationship acknowledged and protected by the common law. Such an agreement is known as a universal partnership and can be entered into by verbal undertaking, in writing, or even tacitly. The High Court further pointed out that such a partnership was a common practice recognised by the courts between a man and woman living together as husband and wife, but not married legally. Referring to article 10 of the Namibian Constitution, [67]  the Court concluded that if a man and woman could enter into such a relationship, and since the partnership was so strong that a court of law would divide the assets when it dissolved, in terms of the constitutional equality principle of article 10(2), two lesbian women should also be able to enter into such a partnership.

Consequently, the Court found that a relationship between the applicants are indeed protected by law and should have been considered by the respondent. In a rather long shot, the Court did not refer the case back to the Board, but instructed the Board to grant the first applicant permanent residence. However, the Immigration Board appealed to the Supreme Court. The Supreme Court, per Justice O'Linn, found in its judgment that the Court a quo erred in its conclusion that law protects a lesbian relationship: [68]

The Court then did an egg dance and stated: 'Nothing in this judgment justifies discrimination against homosexuals as individuals, or deprived them of the protection of other provisions of the Namibian Constitution.' [70]  In short, the Court, following Zimbabwean jurisprudence in the Banana case, concluded that the list of categories against whom discrimination is prohibited is closed, and the word 'sex' only means male/female and not sexual orientation. Consequently, the Namibian Constitution and Namibian law did not protect the partnership emanating from same-sex relationships. The categories of protected entities in article 10(2) of the Constitution did not include sexual orientation.

While the Court did not elaborate on the foundation of the Namibian values, or any religious connotation to homophobia, it took judicial knowledge of the President's and other politicians' opposition to homosexuality, 'because that would be against the traditions and values of the Namibian people and would undermine those traditions and values'. [71]  The Court also pointed out that when these homophobic statements were made in parliament, 'nobody on the government benches, which represent 77% of the Namibian electorate, made any comment to the contrary'. [72]  While religion is not mentioned as the foundation of the homophobia or the judgment, the reference to African culture and African tradition has a ring of a religious pretext. The vast majority of churches support the government's anti-homosexual attitude and concur with the judgment of the Supreme Court. The Namibian leaders often refer to homosexuality as a European import to Namibia and anti-Christian. [73]

5.7  Jewish identity as a source of protection

One of the first cases of racial discrimination dealt with an advertisement in a newspaper congratulating the World War II German prisoner, Rudolph Hess, on his birthday. [74]  Although the case did not deal directly with a religious issue, being Jewish encompassed both the cultural and religious identities of a people. Consequently, discrimination against Jewish people can almost always be seen as religious oppression. In this case, however, the court evaluated the offence in the light of the historical understanding of oppression in Namibia as acts of the white minority against the black majority. The Act (Racial Discrimination Prohibition Act 26 of 1991) was meant to transform the discriminatory society of South African occupation. Since the Jewish community did not suffer under the apartheid system, the Act was not created to protect them. 

The argument of the Honourable Justice Frank (as he then was) does not make much sense. While the monetary power of the whites may still put them in a position to discriminate against blacks, the state now has the power to act against such offenders. The possibility that the oppressed can turn to become the oppressor can never be excluded. The objectives of the Act are possibly to rid Namibia of its historical past, while at the same time to create a framework for a discrimination-free future Namibia, and a small minority like the Namibian Jewish community will always be vulnerable.

The Smith case, like the Frank case, [75]  creates the impression that certain categories of vulnerable people are not protected against discrimination by the Namibian Constitution.

Christians, especially Evangelicals, are a vulnerable community. Despite their growing numbers, the SWAPO-led government has been openly negative (President Nujoma) or cautiously neutral (President Pohamba). One would expect Evangelicals to be more aware of the rights of other vulnerable communities. However, they have proved themselves to be extremely sectarian and biased when it came to the rights of others. They ignored the Jewish debate, openly supported the Frank judgment in the Supreme Court and vigorously opposed the application of two Muslim communities to build mosques.

5.8  The perceived threat of Evangelicals and other non-traditional churches

Christians and other religious communities have experienced privileges not always associated with a secular state. The threats of former President Nujoma was never more than just an expression of dismay. Although the former head of state did not fully forgive the churches who opposed the liberation struggle, his anger was often directed against the wrong people — the black Pentecostal/charismatic churches.

The idea of introducing a system to register churches is still debated in the SWAPO party. At a SWAPO Youth League central committee meeting, the secretary, Elijah Ngurare, suggested a Ministry of Religion to support the churches in its combat of poverty. However, only traditional churches should be allowed to register. The secretary did not say what would happen to the non-registered churches. [76]  It seems as if non-mainline churches themselves fear that they will be harmed by the proposed registration. In a letter to the party ombudsman, the president of the Association of Charismatic and Pentecostal Churches of Namibia suggested that the association will be the best body to regulate Pentecostal churches. He also asked the ombudsman to recommend to government that the association be appointed to approve or reject new churches. [77]  Neither the SWAPO Youth League nor other proponents of limiting the rights of Evangelicals and other minority religions gave reasons for their proposals. President Nujoma seemed to be troubled that they did not support the struggle for independence. The argument, however, is not convincing.

Let us first look at the Pentecostal/charismatic scene before independence. There were a few big white Pentecostal churches, the AFM, Full Gospel, the Latter Rain and the Pentecostal Protestant Church. However, the total white membership of these churches was less than 1 000. They opposed independence and supported the apartheid regime. That, however, was not exceptional for white churches. The three Reformed churches were much more vocal in their support of apartheid, and some of them are now members of the CCN — the shibboleth of respectability. Why target only the small churches? The apartheid system was after all the result of the reformed Kuyperian theology of the Dutch Reformed Church. Ironically enough, two big white-dominated Pentecostal denominations joined the CCN after independence.

The black Pentecostals like Filadelfia and Eben-Eser left the white mother churches in protest against apartheid, as Mulondo clearly pointed out in his BA dissertation. [78]  They were part of the oppressed people and even if they were not political activists or very vocal, their existence alone was an act of protest against apartheid. Were they against the struggle? I have not seen one piece of evidence to convince me of that. On the contrary, many of the black pastors had children in exile. In South Africa, Joseph Kgobo, a former MK cadre and father of children who were either in MK or studied abroad, became a leader in the Back to God Group — a movement prominent in pre-independent Namibia. In Khomasdal, the AFM, under the leadership of Fred Joseph, were vocal supporters of the struggle and fiercely against apartheid. Several young blacks and browns learned about God's preferential choice for the poor and about the sinfulness of apartheid at the feet of the Khomasdal leadership. The South African Pentecostal leader, Frank Chikane, was so deeply involved in the struggle for independence that the transitional government refused him entrance into Namibia. [79]  The young people of the Pentecostal churches in the north went into exile like all other young people at the time. I know of at least two sons of AFM pastors who became Plan fighters.

In a country where we sing the African anthem at official occasions and where the founding President is the patron of Pacon, a Pan-Africanist think-tank, how can anyone have problems with Nigerian and Zimbabwean pastors, especially since almost all white churches call their pastors form either South Africa of Germany? A concern for the well-being of the members of independent charismatic churches is also not the issue at stake. The journalist who wrote the Insight article revealed his or her suspicion when he or she asked Bishop Abrahams if charismatics would become a political force opposing SWAPO. This is also possibly the concern of President Nujoma. [80]

The independent charismatics are exactly what their opponents call them: independent, and they are springing up everywhere: in houses in suburban Windhoek, in informal corrugated iron buildings in Greenwell Matongo, but also in big churches all over the city. But they are religiously and politically as diverse as their names and as independent as their tag. Even the apostles, prophets and bishops have limited authority. Forget about an apostolic council or a new denomination for all of them. Not even the denominations speak on behalf of all their churches.

In a secular state that guarantees freedom of religion, pureness of doctrine can never be a criterion for including or excluding churches for any official purpose. Namibia has proved that good theology, even if it is substantiated by theologians trained under great academicians in Europe, can never be a guarantee for correct actions. And while churches have the right and obligation to criticise poor theology, it is never possible for the national broadcaster in a secular state to bar churches from the air because 'the situation was getting out of hand and that religion is getting out of the traditional way we know it', as NBC Director-General Gerry Munyama is reported to have said. The theology is sometimes horrible and some practices and some teachings may indeed be unhealthy. But government should not see them as a threat and the national broadcaster should not concern itself with the pureness of their theology.

6.  Concluding remarks

Post-independence Namibia did not follow the example of Zimbabwe [81]  or Zambia [82]  by banning religious movements. They created the space for non-Christian religions, such as Islam and the Baha'i Faith, and controversial Christian movements, such as the Mormons and so-called Apostolic charismatic churches from West Africa, to settle in Namibia. While the founding President often targeted the Pentecostal/charismatic churches and non-mainline Evangelicals for criticism, there was never a real threat to their freedom to express and practise their faith without government intervention or regulation. Some of the allies of the South African policies were even allowed the space to play a leading role in religious broadcasting after independence (the Dutch Reformed and some Pentecostal churches, for instance the AFM). Government is also willing to listen to the voice of the religious community, as was shown in the abortion debate. In test cases such as the Smith case, both the courts and government seem to be insensitive to the threat and needs of small minority religious groups such as the Jewish community. While Evangelicals are eager for government to acknowledge their rights, they proved to have little concern for the rights of other minorities.