Three judges of the Windhoek High Court yesterday reserved their judgment on a constitutional challenge of the validity of the common law crimes of sodomy and unnatural offences, and all statutory enactments that refer to or incorporate such crimes.
Windhoek High Court judges Nate Ndauendapo, Shafimana Ueitele and Claudia Claasen postponed the matter to 17 May 2024, which is coincidentally the International Day against Homophobia, Biphobia and Transphobia.
In this case, LGBTQI advocate Friedel Laurentius Dausab is suing Justice minister Yvonne Dausab and law-enforcement agencies in pursuit of decriminalising sodomy in Namibia.
According to Friedel, these laws criminalise a core aspect of personal identity and inhibit intimate relationships that are central to an autonomous, fulfilling life. He further says the laws “unfairly and irrationally discriminate on the basis of sex and sexual orientation”, which goes directly against the findings in the Digashu judgment.
In that judgment, the Supreme Court found that discrimination based on sexual orientation is against the supreme law of the land – the Constitution.
According to senior counsel Gilbert Marcus, who is representing Dausab and assisted by Natasha Bassingthwaighte, Ramon Maasdorp and Michaela Kritzinger, these laws infringe on the constitutional rights to dignity, privacy, freedom of expression and freedom of association.
They also contend that the offence of unnatural sexual offences is unconstitutionally vague.
Attorney General Festus Mbandeka is defending the criminalisation of the offences on the basis that most Namibians are against the practices.
Marcus said the State machinery vigorously defends the impugned laws and endorses a slew of homophobic stereotypes that compare loving and consensual sexual activity to incest, bestiality and hardcore drug use.
Senior Counsel Griffiths Madonsela, who is appearing on behalf of the government entities that are opposing the application together with Advocate Dennis Khama, instructed by the attorney general, argued that this is not a matter for the courts to decide.
According to him, the matter is of national importance and should be decided by the people and their democratically elected representatives. While they accept the majority ruling in the Digashu judgment, he said, there is something to be said about dissenting judge Theo Frank’s assertion that legalising homosexuality is something that is best left for the lawmakers.
In his view, Friedel is trying to short-circuit the democratic processes by enlisting the help of the courts to make his point, said Madonsela.
To achieve this, Madonsela argued, Friedel seeks to cast his moral viewpoint as a legal one, employing emotive rhetorical devices to assert that the laws criminalising consensual sex between males are unconstitutional.
According to Madonsela, Friedel mounted a multi-pronged attack by targeting various articles in the Constitution, which is not substantiated. He said none of the rights he claims are infringed is about sexual orientation.
Despite this, Madonsela argued, the applicant wants the court to achieve the very opposite of that which the drafters of the Namibian Constitution expressly decided against by “constitutionalising homosexual sodomy through a back door”.
“The court cannot allow this to happen,” Madonsela argued as he asked the court to dismiss the application with costs.
