Understanding the Namibian court ruling that decriminalised gay sex

The approximately 2000-year old Warren Cup depicts sex between men. Photo: Ashley Van Haeften via Wikimedia (CC BY 2.0)

The High Court in Namibia, on 21 June, declared unconstitutional the criminalisation of sodomy between consenting men, on the grounds that it unjustifiably infringes on the constitutional rights to equality, dignity, freedom of expression and association.

The case concerned a challenge to the constitutionality of various sections of the Namibian Criminal Procedure Act, the Immigration Control Act, Defence Act and the common law which make sodomy between consenting male adults a crime. Significantly, these laws do not make consensual sodomy between a male and female a criminal offence – only consensual sodomy between males is criminalised.

The case was brought by Friedel Dausab, a gay man. In his court papers, he explained that it was difficult for him and other gay people in Namibia to be open about their sexuality. After he came out, Dausab was ostracised by his family, he said, and faced intolerance and discrimination from society.

Dausab wrote that the laws being challenged were unconstitutional because they criminalised acts of love and affection between consenting male adults. This meant that gay men were labelled criminals. This reinforced the perception that their rights and human dignity were not worthy of protection under the Namibian Constitution, he said.

Dausab said criminal prosecution for expressing love and affection meant that gay men would be required to disclose that they had been convicted of a criminal offence when they applied for a job, even though their sexual activity was fully consensual. They would also face discrimination when they applied for a visa and their criminal conviction could be used against them in custody disputes.

Namibian government opposes the case

The Namibian government opposed the case on two grounds.

First, the government said it was not for the court to determine whether sodomy between consenting male adults should be criminalised. This was an issue for Parliament to decide.

Relying on a previous judgment of the Namibian Supreme Court, the government argued that the founding fathers of Namibia had not found that the repeal of the laws in question was necessary when the Constitution was enacted. This meant that the drafters of the Namibian Constitution intended to leave the issue about the constitutionality of these laws to Parliament alone to determine – not the courts.

Second, the government argued that the criminalisation of sodomy between consenting male adults did not result in any discrimination on the grounds of sex or gender. The Namibian Constitution (unlike the South African Constitution) does not expressly prohibit discrimination on the grounds of sexual orientation.

Criminalisation of anal sex: a double standard

Both the government’s arguments were rejected by the High Court. In the judgment, Judge Nate Ndauendapo (with two other judges concurring) said the fact that the majority of the population disagreed with homosexuality was not relevant. What was relevant was whether the laws being challenged were constitutional and consistent with the rights protected by the Namibian Constitution.

The court found that the government is permitted to criminalise sexual conduct when it conflicts with human dignity, or when there is a rational reason to criminalise those acts, such as bestiality. The government, however, had failed to show any justifiable or rational reason why it should be allowed to interfere in sexual acts between consenting adult men in private.

The court found the government could not put forward any argument to show any legitimate or rational reason why consensual sodomy between males was criminalised but the same rules did not apply to females.

“The question that springs to mind is, what is rational about criminalising one sexual activity and not the other? The answer must surely be that there is nothing rational about it. If anal sex between men is immoral and against the order of nature, we see no reason why anal sex between a man and a woman is not immoral and not against the order of nature”.

The court said that the grounds of discrimination in the Nambian Constitution are not limited and other grounds of unfair discrimination can be established. In this case, however, the challenged law was discriminatory because consensual sodomy between men and women (as opposed to men and men) was not criminalised. This meant the challenged laws constituted unfair discrimination on the grounds of sex and gender which are recognised grounds of discrimination under the Constitution.

The court also found that the discrimination was unfair. This was because the challenged laws violated the dignity of gay men and reinforced the perception that they were not entitled to equal treatment and respect.

The fact that a section of society believed that homosexuality was wrong, did not mean that the violation of the rights of gay men was justified. The court also had a duty to protect fundamental rights and could not refuse to perform this duty because of public opinions about the issue.

The court ordered the government to pay Dausab’s legal costs.

The government may still appeal against the ruling in the Namibian Supreme Court.

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