Niël Terblanché
In a historic and momentous judgment delivered on Friday, a panel of Namibian High Court Judges declared the common law offences of sodomy and whatever else is deemed as unnatural sexual offences between men, unconstitutional.
The conclusion was reached by High Court justices Nate Ndauendapo, Shafimana Ueitele, and Claudia Claasen and the ruling is being celebrated as a major victory for the LGBTQ+ community in Namibia, signifying a vital step towards equality and justice.
The case, brought forward by Friedel Laurentius Dausab against the Minister of Justice and other key government officials, challenged the constitutionality of laws that criminalised consensual same-sex sexual acts between men.
Dausab, a prominent LGBTQ+ rights activist, argued that these laws were discriminatory and violated fundamental rights, including the right to equality and dignity.
The three justices ruled that the sodomy laws were discriminatory and violated Article 10 of the Namibian Constitution, which guarantees equality before the law.
The decision stresses the importance of recognising and protecting the rights of LGBTQ+ individuals in Namibia.
The judges found that the criminalisation of consensual same-sex acts infringed upon the rights to dignity and privacy.
The judges noted that these laws perpetuated stigma and discrimination against LGBTQ+ individuals, undermining their fundamental human rights.
The court firmly rejected the notion that societal moral disapproval justified the criminalisation of private consensual acts.
The ruling emphasised that laws rooted in prejudice cannot serve a legitimate purpose in a democratic society committed to human rights and equality.
The three judges acknowledged the significant negative impact that the sodomy laws had on the LGBTQ+ community, including psychological harm, social stigma, and barriers to accessing essential services.
The ruling is expected to alleviate these burdens and promote greater acceptance and inclusion.
As a result of the ruling, the court invalidated the inclusion of sodomy in various statutory provisions, including the Criminal Procedure Act, the Immigration Control Act, and the Defence Act.
This decision is expected to lead to further legal reforms to protect the rights of LGBTQ+ individuals in Namibia.
Dausab initiated the case and his personal experiences of discrimination and rejection motivated him to challenge the laws that criminalised consensual same-sex acts.
He argued that these laws were not only discriminatory but also infringed upon his constitutional rights to equality, dignity, and privacy.
The respondents, including the Minister of Justice and the Attorney General, defended the laws on the grounds of upholding public morality.
However, the panel of judges dismissed these arguments, stating that such laws were based on prejudice and did not serve any legitimate public interest.
The High Court Justices’ decision is expected to pave the way for further legal and social reforms aimed at promoting LGBTQ+ rights and combating discrimination and also signifies a move towards a more inclusive and equitable society where the rights and dignity of all individuals are respected and protected.
