Three judges of the High Court of Namibia in Windhoek on Friday ruled that the laws criminalising sexual acts between two consenting male adults are against the spirit of the Namibian Constitution.
Judge Nate Ndauendapo - who wrote the judgement - with judges Shafimana Ueitele and Claudia Claasen in agreement, declared the common law offence of sodomy unconstitutional and invalid.
LGBTQI+ activist Friedel Dausab brought the constitutional challenge against the law, with the help of Positive Vibes Namibia in June 2022.
In a media briefing after the delivery of the verdict, which brought scenes of jubilation and joy, Dausab and Positive Vibes' chairperson Flavian Rhode described it as a momentous achievement in the fight against homophobia.
Dausab, in particular, was over the moon, and said he has dreamt of this moment since he first came out as a gay man.
"I always remember the first line in our Constitution that every Namibian has the right to pursue happiness," he said to loud cheers.
"The sodomy law was always a stumbling block to queer men to have open and free relationships. My dream was always to have a love that is not a crime," he added. He cited the Minister of Justice, who is responsible for administering the laws, the Minister of Home Affairs, Safety and Security, the Minister of Defence and Veterans' Affairs, the Prosecutor General, and the Attorney General (AG) as respondents in the matter.
While it is not clear at the moment if the AG will appeal against the judgement, Rhode said they will defend it to the end.
"We are committed to the journey," he observed. The ruling made international headlines. Responding to the decision, Amnesty International's deputy regional director for east and southern Africa, Khanyo Farise, said: "The Namibian High Court's decision to overturn these laws and decriminalise consensual same-sex conduct is a victory for love, for equality and for human rights.
"This ruling is a step towards ending discrimination in equal access to healthcare and other social services, and ensuring that all people in Namibia can choose their partners without fear of reprisals, and live their lives in dignity."
At Independence in 1990, Namibia inherited these laws from South Africa, although that country has since decriminalised same-sex sexual activity, and has become the only country on the African continent to allow LGBTQI+ couples to marry, enter civil unions and adopt children.
"We commend the High Court for its courageous and just decision, which aligns Namibia with global human rights' norms, and reaffirms the supremacy of the Constitution of Namibia. This ruling is testament to the progress we are making towards a society where every individual, regardless of their sexual orientation, can live free from fear and discrimination, and enjoy the right to freedom of expression.
We look forward to the Ministry of Justice's commitment to reviewing and aligning our laws with the Namibian Constitution and international human rights' standards, ensuring that no one is left behind," said Linda Baumann of the Namibia Diverse Women's Association (NDWA) and Zoé Titus of the Namibia Media Trust (NMT). They urged Namibian civil society organisations to commit to actively collaborate with the government to ensure that this ruling is implemented effectively, and that further measures are taken to highlight the importance and protection of the rights of all LGBTQI+ individuals in the country.
The judges also declared the common law offence of unnatural sexual offences as unconstitutional and invalid, as well as the inclusion of the crime of sodomy in schedule one of the Criminal Procedure Act (CPA).
Section 269 of the CPA, which criminalises sodomy, was declared unconstitutional and invalid, as well as the inclusion of the crime of sodomy in schedule one of the Immigration Control Act.
The inclusion of the crime of sodomy in Section 68(4) of the Defence Act was likewise declared unconstitutional and invalid. The
judges further ordered that the respondents must pay the costs of the application, to include the costs of one instructing and two instructed counsel. Dausab brought the application on the premise that the common law offences of sodomy and unnatural sexual offences, and the statutory provisions which incorporate the crimes of sodomy and unnatural sexual offences, unfairly and irrationally discriminate against him and other gay men on the basis of sex and sexual orientation, and thus infringe on his constitutional right to equality, dignity, privacy, freedom of expression and freedom of association.
He stated that the Constitution guarantees protection against inhuman and degrading treatment, but he is not free to be himself. He argued that the impugned laws irrationally and unfairly differentiate on the basis of sex and sexual orientation, in violation of Article 10 of the Constitution, unlawfully limit the right to dignity as contained in Article 8, unjustifiably limit his right to privacy as contained in Article 13, unjustifiably violate the right to freedom of association and expression as guaranteed in Article 21, and the crime of unnatural sexual offences is unconstitutionally vague.
The crux of the matter was whether the common law offences are unconstitutional. To this question, the judges said a loud yes. According to them, the differentiation which the impugned laws accord to gay men amounts to unfair discrimination, and is thus unconstitutional. They further said the view of a section of the population that homosexuality is an abomination is a compound of prejudice and personal aversion which represents no conviction, save for a blind hate rising from unacknowledged self-suspicion.
"We further found that it remains possible that the ordinary man could produce no reasons for his views, but would simply parrot his neighbour, who in turn parrots him", the judges stated.
They asked, "can it be said that to criminalise consensual anal intercourse between consenting males in private, simply because we consider it to be immoral, shameful and reprehensible and against the order of nature, is so important an objective as to outweigh the protection against unfair discrimination?".
Sign up for free AllAfrica Newsletters
Get the latest in African news delivered straight to your inbox
What threat, the judges asked, does a gay man pose to society, and who must be protected against them?
The judges further said they are of the firm view that the enforcement of the private moral views of a section of the community (even if they form the majority of that community), which are based to a large extent on nothing more than prejudice, cannot qualify as such a legitimate purpose. "We are not persuaded that in a demographic society such as ours, with a constitution which promises the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family and the pursuit of individual happiness, it is reasonably justifiable to make an activity criminal just because a segment, maybe a majority, of the citizenry consider it to be unacceptable," the judges stressed.
They further said the criminalisation of anal sexual intercourse between consenting adult males in private is outweighed by the harmful and prejudicial impact it has on gay men, and that its retention in law is not reasonably justifiable in a democratic society.
Depriving gay men of the right to choose for themselves on how to conduct their intimate relationships poses a greater threat to the fabric of society as a whole than tolerance and understanding of non-conformity could ever do, the judges added.
