BY SAM ALFAN.
Sodomy and unnatural sexual offences have been outlawed in Namibia in a major victory by the gay community.
In a landmark decision likely to spark public debate, the three-Judge constitutional court struck out Section 269 of the Criminal Procedure Act 1997.
The other two casualties are contained in Schedule One of the Immigration Control Act of 1993 and Section 68(4) of the Defence Act.
The court ruled that public condemnation of homosexuality was largely driven by “personal aversion, prejudice and blind hate.”
The majority in society viewed homosexuality as abominable and intolerable, the court observed, while the ordinary man could not give sufficient reasons for the aversion.
In the unanimous decision, the court reasoned that whereas the gay community suffered discrimination at the hands of private individuals, the State denies the victims the protection guaranteed by the Constitution.
It was ironical that society scoffed at intimate relationships among consenting adult men but looked the other way when heterosexual men and women engaged in similar joy rides.
Further, the social stigma imposed by society on homosexual men adversely affected their livelihood, careers and professions, the court held.
“We find that the deferentiation which the impugned laws accord to gay men amounts to unfair discrimination and is thus unconstitutional. The finding of unconstitutionality leads to only one conclusion, namely, to declare the impugned laws invalid,” Justices Ndavendapo N, Ueitele S.F and Claasen C., said in the 27-page judgment.
“The criminalization of anal sexual intercourse between two consenting adult males in private is outweighed by the harmful and prejudicial impact it has on gay men and that it’s retention on our law is thus not reasonably justifiable in a democratic society,” they said.
“Depriving gay men of the right to choose for themselves how to conduct their intimate relationships poses a greater threat to the fabric of society as a whole than tolerance and understanding of non-conformity could ever do, the Judges pointed out.
Renowned civil rights activist, Friedel Laurentius Dausab, had invoked Article 25 of Namibia’s Constitution seeking redress on grounds that the law discriminates against him and other gay men on the basis of their sexual orientation.
The activist, who dropped out of university and devoted more than 20 years fighting for gay rights, had protested violation of their constitutional rights to equality, dignity, privacy, freedom of expression and association.
Dausab had narrated to the court his trials and tribulations at the family level resulting in his resolve to gather extensive experience in HIV/AIDS prevention and treatment campaigns.
He had sued the Ministers for Justice, Home Affairs and Defence alongside the Prosecutor-General and the Attorney -General.
The court said it was irrational to criminalize male-to-male sexual activities as immoral and against the order of nature while heterosexual men and women engaged with abandon their preferred past-times.
“What threat does a gay man pose to society and who must be protected against him? We are of the firm view that the enforcement of the private moral views of the community, even if they are the majority, which are based to a large extent or nothing more than prejudice, cannot qualify as such a legitimate purpose,” the court observed.
The Judges said the protection against unfair discrimination outweighed what many considered immoral, shameful, reprehensible and against the order of nature.
“We are not persuaded that in a democratic society such as ours, with a Constitution which promises the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family and the pursuit of individual happiness, it is reasonably justifiable to make an activity criminal just because a segment, maybe a majority of the citizenry, consider it to be unacceptable, ” the Judges said.
