EXPLAINER: Why the Sodomy Law Had to be Repealed

What is sodomy? ‘Sodomy’ is part of the Roman-Dutch common law inherited by Namibia at independence.

Historically, it was the legal label given to all manner of ‘unnatural’ sexual offences, including masturbation, oral sex and anal intercourse between people of the same sex or opposite sexes, sexual intercourse with animals and even heterosexual intercourse between Christians and Jews.

Gradually, much of the broad content of ‘sodomy’ fell away and the prohibited activities were split into three separate crimes in South Africa: sodomy, bestiality and a residual category of ‘unnatural sexual offences’.

The common law crimes of ‘sodomy’ and ‘unnatural sexual offences’ criminalised only sexual contact between men. Why was sexual contact between women not criminalised? The answer is not clear.

Namibia’s new Combating of Rape Act covers a wide range of intimate sexual contact in circumstances that involve force or coercion, including oral sex, anal sex and genital stimulation between people of the same sex or different sexes.

It protects children below the age of 14 against all such sexual activity, while the Combating of Immoral Practices Act gives additional protection to children up to age 16.

So the common law crimes of ‘sodomy’ and ‘unnatural sexual offences’ are now relevant only to sexual acts between consenting adult men.

PROTECTION

The law against consensual sodomy has now been declared unconstitutional.

Firstly, even in the unlikely event that our Constitution was not found to protect the rights of gays and lesbians directly, the sodomy law violates the equality provisions of the Constitution’s article 10, because it treats men differently than women.

Homosexual activity between women is not criminally punishable, but homosexual activity between men is.

Secondly, there is the right to privacy. Article 13 of our Constitution protects persons in the privacy of their homes, correspondence and communications. Since the Constitution protects us all against the spectre of hidden cameras in our bedrooms or law-enforcement officers hiding in the wardrobe, how would the police go about enforcing a law which criminalises consensual sodomy?

Surely private and consensual sexual encounters between adults are at the very core of the concept of any meaningful right to privacy.

The sodomy law was seldom enforced with respect to consenting adults, but this did not mean it sat benignly in the law books dying of disuse. It has still been cited by prison officials in Namibia as a justification for refusing to provide prisoners with condoms to prevent the spread of HIV. The argument was that since consensual sodomy was illegal, providing condoms may make prison officials accessories to crime.

‘UNAPPREHENDED FELONS’

More broadly, according to former South African Constitutional Court judge Edwin Cameron, the existence of the law placed gay men in the position of “unapprehended felons”.

It entrenches stigma and encourages discrimination in other areas of life. According to the European Court of Human Rights, criminal sanctions against homosexual acts “reinforce the misapprehension and general prejudice of the public and increase the anxiety and guilt feelings of homosexuals”. The law on sodomy also sat very oddly beside Namibia’s previous Labour Act, which made it illegal for employers to discriminate against employees on the grounds of sexual orientation (section 107).

This previous Labour Act was widely debated among representatives of government, trade unions and employers and then passed by the parliament and signed by the president in 1992.

Can it really be the case that employers may not discriminate against homosexuals, while the criminal justice system may?

That is a strange anomaly indeed. The Constitutional Court in South Africa ruled in 1998 that the common law crime of sodomy violates the South African constitution, stating that its purpose was “to criminalise private conduct of consenting adults which causes no harm to anyone else” simply because such conduct “fails to conform with the moral or religious views of a section of society”. In the court’s view, the crime had a grave effect on the rights and interests of gay men and deeply impaired their fundamental dignity.

The South African constitution, unlike the Namibian one, specifically prohibits unfair discrimination on the grounds of sexual orientation. But the South African court also found that sodomy violates constitutional rights to dignity and privacy, which have clear Namibian analogies.

The crime of sodomy has been repealed in many countries, including Australia, New Zealand, Canada, England, Germany and most of Western Europe.

Both Northern Ireland and Ireland were forced to repeal laws criminalising consensual sodomy by judgements in the European Court of Human Rights.

The South African case invalidating the South African law on sodomy contains a ringing endorsement of equality as “equal concern and respect across difference”.

Equality does not mean that we should all have uniform beliefs and behaviours.

There are Namibians who believe that sex between men and women outside of marriage is sinful. There are Namibians who believe that contraception is wrong, because the purpose of all sexual relationships is procreation.

RIGHT TO DIFFERENT BELIEFS

Namibians have a right to beliefs such as these, but our law does not impose these beliefs on the entire population.

People who believe homosexuality is wrong are also entitled to their opinions, but they do not have the right to insist that the state must endorse their beliefs and force them on society at large.

The fact that the laws on sodomy was still in force added to the atmosphere of discrimination against gays and lesbians that has sometimes pervaded political discourse in Namibia.

As a nation, Namibia can be strong only if it accepts the fact that it is a diverse country which must encourage a culture of respect and tolerance – including respect and tolerance for gays and lesbians.

The sodomy law was a manifestation of extreme intolerance.

– This article was first published by the Legal Assistance Centre.