Erasmus Shalihaxwe
Prominent lawyer Sisa Namandje said the case in which Friedel Dausab, challenged the two colonial-era laws that criminalized same-sex acts between men should have been dismissed.
Namandje made these remarks on Saturday during a public lecture under the theme ‘Can there be a Constitutional Court-made law or principle having no roots in the language and scheme of the Namibian Constitution? A critical look at the recent judgment of the High Court of Namibia on the crime of sodomy.’
“The High Court’s undue emphasis on the question of rationality and its dismissive approach on the societal majority views and opinion on the necessity of the crime of sodomy is, with respect, mistaken,” Namandje said.
Last month, the High Court declared common law crimes of sodomy and “unnatural sexual offences” unconstitutional.
Judge Nate Ndauendapo, Shafimana Ueitele and Claudia Claasen made the joint ruling.
The court also declared that the inclusion of the crime of sodomy in sections of the Immigration Control Act and the Defence Act is unconstitutional and invalid.
Namandje is of the opinion that if the High Court in the Dausab judgment were to have found that no such prohibition of discrimination on the basis of sexual orientation exists.
He said there would have been no need for the High Court to rely on the right to dignity under Article 8 and the right to privacy under Article 13 as those rights would have been irrelevant in the absence of proven discrimination.
“The value judgment that a Namibian court has to make in the interpretation of the provisions of the Constitution in as much as they may impact on the impugned provisions must be based on the values and aspirations of the Namibian society,” he argued.
Namandje advised that it is time for Namibian Courts in important constitutional matters to undertake a serious consideration of the nation’s boni mores, values, cultures, aspirations and sensitivities before making a decision
He said the South African Constitution was not an appropriate legal reference in the Dausab judgment.
Namandje who is also a Swapo central committee and politburo member, added that the party’s position remains that sodomy should remain a crime and same-sex marriage should not be recognised in Namibia.
