Namibian launches constitutional challenge against sodomy law

On 27 June, Friedel Dausab, a 48-year-old Namibian activist, filed a case before the High Court challenging the constitutionality of Namibia’s sodomy offences. The criminalisation of sodomy is found in the common law of Namibia, which was inherited from South Africa at independence. Currently, this law, along with the common law crime of “unnatural sexual offences”, criminalises certain consensual sexual acts between men. The sentences attached to the offences are not clear.

In a statement issued this week, the Positive Vibes (PV) Trust said that criminalising consensual sex between men violates the fundamental rights enshrined in the Constitution of the Republic of Namibia and the African Charter on Human and Peoples’ Rights. These include the rights to equality and non-discrimination, human dignity, privacy and expression, the queer organisation said. In Namibia, campaigns for equity and justice for all Namibians, including the lesbian, gay, bisexual and trans (LGBT) community, said. PV underlined that they are lending support to Dausab in his legal challenge.

“How adults conduct their private lives within loving, consensual relationships, and in the intimacy of their own homes, should not be a matter for state interference,” says Flavian Rhode, executive director of PV.

“The Namibian Constitution - the supreme and home-made law of our land - should be respected and upheld as sacrosanct. Obsolete and outdated colonial laws that breach our constitution have no place in a diverse, post-independence Namibia, and should be relegated to the history books,” added Rhode.

Gateway law

There is no evidence that anyone has been convicted under the common law sodomy offence since independence, although there have been arrests, the trust noted. Nevertheless, the organisation warned that the mere existence of these offences violates human rights and gives the green light to LGBT discrimination and abuse. The Namibian LGBT community suffers verbal and physical abuse, violence, harassment, blackmail and discrimination as a result of the environment of shame that these laws create, PV noted.

Explaining his decision to tackle the law, Dausab said: “I am challenging these laws as a lifelong and dedicated activist because I am acutely aware that criminalisation is a clear obstacle to living a full, open, honest and healthy life. Through my own personal experience, I can also attest that they hinder the prevention of HIV infections and access to a life-saving treatment to prevent AIDS, whilst making gay men like me easy targets for abuse."

He added: “But most of all, I am tired of feeling like a criminal on the run in my own country, simply because of who I am. Just like most Namibians, I want the chance to find love and to know that I belong.”

Dausab and Positive Vibes Trust are not alone in the belief that these laws need to go. In a recent report, the Namibian Law Reform and Development Commission wrote: “The Namibian house encompasses all Namibians and the laws on sodomy and unnatural sexual offences are contrary to fostering a culture of dynamic inclusion for all members of society, including the LGBTI community. These laws should be repealed.”

Many of Namibia’s neighbours, such as Angola, Mozambique, Botswana and South Africa, have already decriminalised same-sex sexual activity, leaving the country as an outlier in the region, PV stated.

PV is a Namibian-registered queer organisation working primarily in Namibia and Africa, with programmes in the Middle East, South-East Asia and Central America. PVs work centres around the themes of development, human rights and inclusion. In Namibia, much of PV’s work focuses on the realisation of the rights of LGBT communities, as well as sex workers.

Dausab is represented by a Namibian legal team and Gilbert Marcus and is supported by the Human Dignity Trust.