Namibian High Court Decriminalises the ‘Crime of Sodomy’ and ‘Unnatural Sexual Offences’: A Beacon of Hope for LGBTQIA+ Rights in Africa?

On 21 June 2024, the High Court of Namibia in Dausab v The Minister of Justice (HC-MD-CIV-MOT-GEN-2022/00279) [2024] NAHCMD 331 (21 June 2024) held that the common law crimes of sodomy and unnatural sexual offences were unconstitutional and invalid.

Seen against the background of the Namibian Supreme Court’s May 2023 decision in Digashu and Others v Government of the Republic of Namibia and Others 2023 (2) NR 358 (SC) (Digashu), where the Court recognised same-sex marriages concluded abroad and the backlash against the Supreme Court’s judgment from Namibian Parliament, the High Court’s decision, in this case, is a momentous step towards to the full realisation of LGBTQIA+ rights in Namibia and a beacon of hope for the region.

The Applicant in this case was a gay man who brought an application to the court seeking constitutional redress under Article 25 of the Namibian Constitution, challenging the constitutionality of the common law offences of sodomy and unnatural sexual offences, as well as statutory provisions that incorporate these crimes.

The Applicant argued that these laws unfairly and irrationally discriminated against him, and other gay men based on sex and sexual orientation, violating their constitutional rights to equality (Article 10), dignity (Article 8), privacy (Article 13(1)), freedom of expression (Article 21(a)), and freedom of association (Article 21(e)).

The Applicant claimed that the laws criminalising consensual anal intercourse between gay men are discriminatory and unconstitutional, as they do not apply to similar acts between heterosexuals or between women. He also alleged that the laws perpetuate stigma and discrimination against gay men, leading to negative consequences such as fear of criminal prosecution, self-esteem issues, and difficulty in forming intimate relationships.

Article 10(1) of the Namibian Constitution guarantees equality before the law, and Article 10(2) prohibits discrimination on the grounds of sex, race, colour, ethnic origin, religion, creed, or social or economic status. While sexual orientation is not one of the listed grounds on which discrimination is prohibited under Article 10(2), the Applicant argued that the word “sex” in Article 10(2) should be interpreted to include “sexual orientation” and that the impugned laws discriminate on this ground. Finding in the Applicant’s favour, the Court held that the common law crimes of sodomy and unnatural sexual offences were unconstitutional and violative of both Articles 10(1) and 10(2) of the Namibian Constitution.

With regards to Article 10(1), the Court held that the differentiation made by the impugned laws was that it criminalised anal intercourse between gay men but not between men and women or between women. Having identified the differentiation made by the impugned laws, the Court had to consider whether the differentiation was rationally connected to a legitimate governmental purpose.

According to the Court, the purpose of the criminalisation of sodomy was that it was considered “immoral, shameful and reprehensible and against the order of nature”. Rejecting this as a legitimate purpose, the Court firmly held that “the enforcement of the private moral views of a section or majority of the community, which are based on prejudice, cannot qualify as such a legitimate purpose”. According to the Court, in a “constitutional democratic society that protects inherent dignity, equality, and inalienable rights of all humans and the pursuit of individual happiness, it is unreasonably justifiable to make an activity criminal just because a segment or majority consider it to be unacceptable”.

Acknowledging the mental, physical and other harms that the impugned laws had on those affected, the Court noted how the criminalisation of sodomy has a severely negative effect on the lives of gay men as they reduce them to “unapprehended felons”. According to the Court, the criminalisation of sodomy deprives gay men of the right to choose how to conduct their intimate relationships, posing a threat to the fabric of society.

“..the High Court’s decision, in this case, is a momentous step towards to the full realisation of LGBTQIA+ rights in Namibia and a beacon of hope for the region.”

Moving to whether the impugned laws were violative of the prohibition of discrimination in Article 10(2) of the Namibian Constitution, the Court held that the word “sex’ in Article 10(2) of the Namibian Constitution must be read as including “sexual orientation”. Accordingly, while “sexual orientation” was not a listed ground of discrimination under Article 10(2), this did not give the law a license to discriminate on that ground. Therefore, the Court concluded that the differentiation in this case amounted to unfair discrimination.

In addition to being a progressive step towards the realisation of rights for LGBTQIA+ persons in Namibia, the judgment also affirmed important principles for the development of Namibian equality and constitutional law. First, the Court reaffirmed its commitment to giving Article 10 of the Namibian Constitution a substantive rather than a formal meaning, noting the connection between the right to equality and the right to dignity. Second, the Court reaffirmed the role of Namibian courts within the separation of powers guaranteed under the Namibian Constitution.

As held by the Namibian Supreme Court in Digashu, the Court’s role is to “determine the content and impact of constitutional values” and “to protect fundamental rights entrenched in the Constitution” even if this does not align with “public opinion expressed by the elected representatives in Parliament through legislation”. Citing the South African Constitutional Court’s landmark S v Makwanyane judgment, the Court acknowledged the important role that it ought to play in protecting minority rights against majoritarianism.

This judgment is also a testament to the value and impact of South-to-South as opposed to ‘North-gazing’ constitutional comparativism. The Court skilfully referenced and critically engaged with landmark judgments from the South African and Zimbabwean apex courts – contrasting and drawing lessons from these in the development of a uniquely Namibian approach to the rights to equality and dignity.

At a time when we have witnessed the rise of draconian laws criminalising the LGBTQIA+ community in Africa, such as the enactment of the Anti-Homosexuality Act in Uganda and the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill in Ghana, as well as the backlash following the Digashu judgment; this judgment is a beacon of hope for the development of an autochthonous African argument for the protection of LGBTQIA+ and other minority rights.