Attorney-General says sodomy law should stay

Attorney General Festus Mbandeka has submitted an affidavit to the Windhoek High Court in which he argues that a majority of Namibians still reject homosexuality and that sodomy laws should remain in force on that basis.

"I deny that the mere existence of the sodomy laws promotes the stigmatisation of gay men. If these men suffer from any stigma, it is because of their choice to engage in sexual behaviour that is considered morally taboo in our society."

Mbandeka argues this in relation to the case in which a campaigner for the LGBTQ community is challenging the laws against sodomy and "unnatural" sexual offences.

Violation of human rights

Friedel Dausab, the activist who has brought the case to court, says the laws promote stigma and exclusion and lead to the criminalisation of consensual sexual acts between men. He argues that it violates the fundamental rights and freedoms of gay men and is therefore unconstitutional.

Dausab refers to, among other things, the violation of gay men's constitutional right to dignity. Mbandeka disagrees with the statement.

"The purpose of the law is to uphold society's understanding of dignity: there are certain forms of behaviour that are so morally unacceptable that anyone who engages in them undermines their own dignity and the dignity of society.

"In this case, if there is anything that undermines the dignity of homosexual individuals, it is that they choose to engage in behaviour that is frowned upon by society," he argues in the court documents.

Dausab filed the case at the High Court in Windhoek in June last year.

Mbandeka argues that numerous judicial decisions and legislative decisions rely on the principle that "a ruling majority's belief that certain sexual behaviour is immoral and unacceptable" constitutes a rational basis for regulation.

Public opinion

Dausab believes that the sodomy laws are outdated and that social mores have changed since these laws were introduced.

Mbandeka agrees that public opinion has changed since the introduction of the laws, but denies that it has shifted to the point that the law violates common morals.

"Public opinion has not changed in favour of homosexuality. If anything, public views – as represented by parliament's activities – have become stronger against homosexual behaviour."

He further argues that the majority of Namibians do not believe that such laws are outdated.

"On the contrary, the reason why the applicant wants to seek the help of this court to get rid of the offending laws is precisely because he is aware that the majority of the democratic opinion in Namibia believes that sexual activity of homosexual people is contrary to the morals of society."

Modern-day law

Mbandeka further claims that the issue of sodomy is not just a "relic" of colonialism.

He argues that a "democratically elected parliament has considered whether the homosexual activity laws should remain part of the Namibian legislation or whether they should be banned. Our country's legislators have consistently maintained that these laws must remain in place."

Dausab points out in his statement that the laws are no longer applied regularly, but Mbandeka notes that this is not an indication that the laws are unconstitutional.

"It is particularly difficult to know when the offence is being committed, as such sexual activity often happens behind closed doors."

Discrimination dismissed

According to Dausab, the law of unnatural sexual offences includes a variety of sexual acts, such as masturbation and oral sex, but only applies to men.

"These sexual acts are not illegal if they take place between a man and a woman, or even between two women," he emphasises.

Dausab therefore argues that the distinction in the laws amounts to discrimination.

Mbandeka, in turn, argues that penetrative sex cannot take place between two women because they do not have penises. He further believes that the law only refers to sexual activities between people of the same sex.

"It would be impossible to prove that a man penetrated a woman anally. The law has correctly decided that it is unrealistic to try to punish such behaviour between a man and a woman."

Mbandeka believes that if it was discrimination - although he denies that it is - it would not be unfair.

"The distinction is rational and serves a legitimate government purpose. Consequently, the distinction is not discriminatory, and even if it were, it is in any case not unfair."

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