Namibia’s historic gay sex ruling unpacked

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. GroundUp notes that 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. It 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. The Namibian Government opposed the case on two grounds. First, it 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. 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.

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. GroundUp notes that 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 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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