A landmark High Court judgement in which the common law crimes of sodomy and "unnatural sexual offences" were declared unconstitutional a month ago is set to be challenged in Namibia's Supreme Court.
This is after the Office of the Government Attorney filed an appeal notice in the Supreme Court at the start of this week.
The notice records that the attorney general, minister of justice, minister of home affairs, immigration, safety and security, minister of defence and veterans affairs and the prosecutor general are appealing against the judgement that High Court judges Nate Ndauendapo, Shafimana Ueitele and Claudia Claasen delivered in the Windhoek High Court on 21 June.
In their joint judgement, the three judges stated that the common law offences of sodomy and "unnatural sexual offences" differentiate between men and women and between gay men and heterosexual men.
This amounts to unfair discrimination and is unconstitutional, the court found.
The court noted in its judgement that the definition of sodomy criminalises sexual conduct between men - also when it takes place with consent and in private.
However, the same sexual conduct is not an offence when it takes place between a man and a woman or between two women.
It is not rational to criminalise sexual activity between men while the same sexual act between a man and a woman is not criminalised, the court remarked.
The court also stated that in the context of Namibia's Constitution, which promises to recognise the inherent dignity and equal rights of all people, it is not justifiable to make an activity criminal "just because a segment, maybe a majority, of the citizenry consider it to be unacceptable".
The High Court's judgement was given 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.
APPEAL GROUNDS
In the appeal notice, it is stated that Dausab based his application on six grounds on which he claimed the criminalisation of sexual acts involving two men is unconstitutional.
According to the five appellants, though, the High Court made an error by considering only one of the grounds raised by Dausab, which was whether the criminalisation of sodomy and "unnatural sexual offences" violated the Constitution's protection of equality and freedom from discrimination.
The court had a duty to decide all of the issues raised by Dausab and all of the grounds on which he challenged the constitutionality of the outlawing of sodomy and "unnatural sexual offences", it is argued in the notice.
The High Court's error means the Supreme Court must decide all the other issues raised by Dausab, or should refer the undecided issues back to the High Court for a decision to be made by that court, it is stated on behalf of the appellants.
It is also claimed in the appeal notice that the High Court failed to consider the norms of Namibian society and combined public opinion with "fundamental underlying and enduring norms, aspirations, expectations, sensitivities, moral standards, relevant established beliefs, social conditions, experiences and perceptions of the Namibian people".
While the High Court acknowledged that sexual orientation is not included among the grounds on which the Constitution specifically prohibits discrimination, the court made "a fundamental error" by stating that this did not allow the law to discriminate on the basis of sexual orientation as well, it is claimed in the appeal notice.
"The High Court has no power to disregard the language of the Constitution, and the intention of its drafters - and to read into the Constitution 'sexual preference' as a protected ground," according to part of the appeal notice.
The court made an error in that regard, it is also claimed in the notice.
The court further failed to appreciate that where distinctions are drawn between the conduct of males and females, it amounts to differentiation, which is not the same as discrimination, according to the appeal notice.
Laws prohibiting sexual acts between men further a rational governmental purpose, namely upholding the sexual customs of Namibian society, it is claimed on behalf of the appellants as well.
COMMENTS
Dausab commented on the lodging of the appeal yesterday: "It is quite sad that the government would use precious national resources to go after a powerless minority."
Dausab added: "For me, it is reminiscent of the apartheid government who had all the guns which they used against us black people."
He continued: "Just like we did during apartheid, I will not stop fighting the injustice. I will see the government in the Supreme Court."
The chairperson of a committee against homosexuality and same-sex marriage in Namibia, Pendapala Nakathingo, said he and his supporters have been demanding that an appeal should be lodged against the High Court's judgement.
"We appreciate the appeal," Nakathingo said, adding that sexual acts between men should remain a criminal offence in Namibia.
Sign up for free AllAfrica Newsletters
Get the latest in African news delivered straight to your inbox
Human rights activist Linda Baumann commented yesterday that the decision to lodge an appeal to the Supreme Court is a disappointment. Baumann said it raises concerns about the government's stance on human rights and she expects it to spark international reaction about Namibia's position on the rights of lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI+) people.
She is also apprehensive that an appeal would increase stigma and discrimination and incite violence against people in the LGBTQI+ community, Baumann said.
By trying to keep laws that criminalise homosexuality in force, the government is declaring discrimination to be acceptable, Baumann commented.
Legal Assistance Centre director Toni Hancox said it was widely expected that an appeal would be filed against the High Court's judgement.
If the matter is decided by the Supreme Court, it will have gone through the country's two highest courts and will then be settled, which would be good for legal clarity, although it would obviously not be pleasant for the people involved, Hancox said.
In terms of the Supreme Court's rules, parties taking an appeal to that court have to file copies of the record of the case from which the appeal emanates at the Supreme Court within three months after the date of the judgement against which the appeal is aimed.
