Judgement on sodomy law challenge moved to June

A high Court judgement on the criminalisation of sexual acts between men has been postponed by a month.

The judgement, which was postponed to Friday this week (17 May) at the end of a hearing before three judges of the Windhoek High Court at the end of October last year, has been rescheduled to 14 June, according to a notice issued by judge Shafimana Ueitele.

Ueitele heard arguments in the matter with judges Nate Ndauendapo and Claudia Claasen on 31 October last year.

The court has to give a judgement on an application by a gay Namibian man, Friedel Dausab, to have the common law criminalisation of male anal sex and “unnatural sexual offences” declared unconstitutional and invalid.

Dausab also wants the court to declare that the inclusion of the crime of sodomy in sections of the Immigration Control Act and the Defence Act is unconstitutional and invalid.

Dausab is alleging that the criminalisation of consensual sexual acts between men violates the fundamental rights and freedoms of gay men and men who choose to have sexual relations with men, and discriminates against people on the basis of sex and sexual orientation.

He says the crimes of sodomy and “unnatural sexual offences”, which are part of Namibian law though the country’s inherited common law, are a legacy of Namibia’s colonial history and have historically been aimed at stigmatising, punishing and excluding people who do not conform to the dominant heterosexual norm.

Dausab also says although people are rarely, if ever, still charged with committing sodomy or “unnatural sexual offences”, which he says is a vague term, these common law crimes continue to stigmatise and marginalise same-sex couples “by outlawing the most private and intimate expressions of their love and identity”.

Attorney general Festus Mbandeka is opposing Dausab’s application on behalf of the government.

Mbandeka has said in an affidavit filed at the High Court that homosexuality is a highly controversial and emotional question, and that for many Namibians homosexual conduct is immoral and unacceptable.

According to Mbandeka, the public sentiment has not reached a point where the people of Namibia, through their elected representatives, have decided that it is time to repeal laws against homosexual conduct.

Mbandeka also said the Constitution’s article protecting equality and freedom from discrimination does not include sexual orientation as one of the grounds on which discrimination is prohibited.