Govt urged to respect sodomy ruling

Legal experts have urged government, especially the executive and the legislature, to respect Friday’s groundbreaking High Court ruling declaring the sodomy law unconstitutional and invalid.

The court concluded that the sodomy law has a "harmful and prejudicial impact" and that the retention of the law "is thus not reasonably justifiable in a democratic society.”

The judgment underlined that in a democratic society that assures the constitutional rights to dignity and equality for all citizens, an activity cannot be deemed criminal "just because a segment, maybe a majority, of the citizenry consider it to be unacceptable."

The ruling was made after LGBTQIA+ activist Friedel Dausab applied for an order seeking to declare the common law offences of sodomy and unnatural sexual offences, along with the statutory provisions that incorporate these offences, unconstitutional.

Although the law was largely obsolete and unenforced, it effectively criminalised consensual sex between adult men.

Reacting to the ruling, Dausab said: “I hope that this historic ruling will allow us to hold hands in public, introduce our other halves to our families, and celebrate our love in public. I hope that people can start dreaming of a love that is not a crime."

‘Love is not a crime’

Veteran human rights activist Dianne Hubbard, the coordinator of the Gender Research and Advocacy Project at the Legal Assistance Centre (LAC) for over 30 years, said: “I believe that the judgment is a victory for everyone in Namibia because it is based on the idea that constitutional rights belong to all individuals in Namibia. So this is a victory, not only for the LGBTQ community but for the Namibian Constitution, which is there to protect us all."

Uno Katjipuka of the Nixon Marcus Public Law Office commended the ruling but added: "One can only hope our government respects our constitutional values of equality and dignity for all, enough to let it be."

Linda Baumann, the strategic coordinator at the Namibia Diverse Women's Association (NDWA), said the ruling is cause for celebration but warned that there are still many groups that oppose and discriminate against the LGBTQIA+ community and cautioned the community to keep their safety in mind.

Community rejoices

Large groups gathered outside the court on Friday to celebrate the landmark ruling.

"My heart is happy. I am so grateful that we are on the right side of history today and going forward! The tears in the eyes of my gay colleagues and friends, the joy and relief are massive!” Lize Ehlers, the co-CEO of Drag Night Namibia, said.

"Being in this community for 20 years, I can't stop shouting out loud that I'm proud to be a lesbian woman," Baumann added.

Florence /Khaxas, the executive director of Y-Fem Namibia, said she believes the judgment heralds a new era for Namibia.

"Namibian citizens are guaranteed freedom from discrimination and to be treated with dignity and equality as enshrined in the constitution," /Khaxas said.

Majority opinion

The judgment was delivered by three judges of the High Court - Nate Ndauendapo, Shafimana Ueitele and Claudia Claasen.

"The differentiation that the laws grant to homosexual men amounts to unfair discrimination and is therefore unconstitutional," their ruling reads.

The judges noted that criminalising consensual sex between men because of views "which are based to a large extent on nothing more than prejudice" is not a legitimate reason to discriminate against fellow citizens.

The court ordered that the crime of sodomy in the Criminal Procedure Act, the Immigration Control Act and the Defence Act be declared unconstitutional and invalid.

Human rights lawyer Norman Tjombe said the court's decision to declare the criminalisation of consensual sexual activity unconstitutional, was not unexpected.

"Especially considering the recent rulings in both the High Court and Supreme Court," he explained.

"What is an important lesson from the courts is that human rights are protected by the constitution and are not subject to majority opinion of members of the public, no matter how powerful and loud it is," said Tjombe.

The judges further ruled that the government must pay the applicant's (Dausab) legal costs.

The case was brought against the ministries of justice, defence and home affairs, as well as the prosecutor general and attorney general. One of the grounds on which they opposed the application was that the majority of society considers sodomy unacceptable.

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