Equality and Dignity for All

Unpacking the High Court’s Decision on Sodomy

In the Dausab case, a gay man challenged the laws that criminalise sexual contact between adult men. On Friday, the High Court found that the crimes in question were unconstitutional and invalid. Here is a closer look at the court’s decision.

What laws did the court declare invalid?

Two main laws are affected: (1) the crime of sodomy, which applies to consensual anal intercourse between adult men in private, and (2) the crime of unnatural sexual offences, which covers other forms of consensual sexual contact between adult men in private.

These same sexual activities were not criminalised if they took place between a man and a woman, or between two women.

Note that the court’s decision does not affect any sexual activities that take place by coercion, nor does it remove the protections for children not old enough to give legal consent to sexual activity.

The decision does not affect the law on public indecency, which applies to anyone who engages in sexual activity in public.

What part of the Constitution did the court rely on?

Mainly Article 10, which guarantees equality and freedom from discrimination. It also relied in part on Article 8(1) which protects the dignity of all people in Namibia.

How is Article 10 applied in practice?

Article 10 has two parts. Article 10(1) says all people shall be equal before the law. Many laws distinguish between categories of people – but this is permissible only where the distinction has a rational connection to a legitimate purpose. Consider an easy example: You have to be 18 years old to get a driving licence. This law differentiates between people above and below age 18, but has the legitimate purpose of limiting driving licences to people likely to be mature enough to drive safely.

This differentiation has a rational connection to a legitimate purpose.

Article 10(2) forbids discrimination on some specific grounds: sex, race, colour, ethnic origin, religion, creed or social or economic status.
If a law differentiates on any of these listed grounds, it is unconstitutional if the differentiation is unjust – because then it constitutes discrimination.

For example, in 2003, the High Court found that a law with different rules for handling the estates of deceased persons on the basis of race was rooted in racial discrimination, which damaged the dignity of those affected – making it a violation of Article 10(2).

How does Article 10 relate to the laws on sodomy and unnatural sexual offences?
Article 10(2) does not specifically refer to sexual orientation, and the High Court found that the term “sex” does not include “sexual orientation”. But the fact that a ground for discrimination is not specifically listed in Article 10(2) does not mean it is okay to discriminate on that basis.

For example, disability is not listed in Article 10(2) – but discrimination on the basis of disability would be unconstitutional if it violated Article 10(1) by differentiating between categories of people without a rational connection to a legitimate purpose.

The laws on sodomy and unnatural sexual offences implicated Article 10(2) because they apply to sexual contact between gay men, but not the same kinds of sexual acts between men and women, or to any sexual contact between women. Thus, these laws drew a distinction based on sex, which is one of the listed grounds.

These laws also differentiated between heterosexual men and gay men, thus making a distinction on the basis of sexual orientation. As sexual orientation is not listed in Article 10(2), this aspect of the challenged laws had to be considered under Article 10(1).

The High Court found unconstitutional discrimination under both parts of Article 10.

It found that the crimes in question have a very harmful and prejudicial impact on gay men, demeaning them and making them feel less worthy of protection as individuals.

The laws in question could expose them to blackmail, to discrimination in access to services and even to violence – and they imposed severe limitations on gay men’s rights to dignity, privacy and freedom.

The fact that some – or even a majority – of the Namibian public may consider sodomy unacceptable does not justify making it a criminal activity.
Personal aversions do not justify restricting another person’s freedoms.

The harmful impact on gay men threatens society more than a situation where the public must be expected to show tolerance.

Each person has equal worth as a human being, regardless of individual differences – which is the link between dignity and equality.

Why not let parliament decide?

As a way of ensuring that the rights of minorities are protected, Namibia’s constitutional order gives the courts the power to determine the content of the fundamental rights entrenched by the Constitution.

Under Article 131, fundamental rights – including the rights to equality and dignity – are protected against any repeal or amendment that would diminish them – no matter what a parliamentary majority wishes to do.

Fundamental rights cannot be weakened even if a referendum shows a majority of the public would favour this.

This is a function of separation of powers, which balances public opinion and the rights of all people in Namibia – a system that helps to keep the Namibian house strong, stable and fair.

– Dianne Hubbard is a legal consultant with many years of experience in public interest law and a passion for trying to make legal issues clear and accessible.
– Note: An article by Hubbard published in yesterday’s newspaper, ‘Why the Sodomy Law Had to be Repealed’, was adapted by The Namibian from an article, ‘Why The Law on Sodomy Should Be Repealed’ – first published by the Legal Assistance Centre in 2000.