Scrapping of sodomy law on the cards
17 May 2021 | Justice
Namibia’s minister of justice Yvonne Dausab on Monday said government is not guilty of state-sanctioned homophobia and has heard the cries of the LGBTQ community for full equality before the law.
“No Namibian should be comfortable with any part of our society feeling either they are second class citizens, that they are being excluded, or stigmatised and discriminated against either on the basis of their sexual orientation, or the basis of their disability, or status in a particular society,” Dausab said.
She was speaking at the handing over of two pivotal reports compiled by the Law Reform and Development Committee (LRDC) to the justice ministry, proposing the abolishment of 34 obsolete laws, including the law criminalising sex between consenting adult men.
The second report, recommending the repeal of Namibia’s controversial common law offences of sodomy and unnatural sexual offences concludes that “the existence of the crimes of sodomy and unnatural sexual offences amounts to unconstitutional discrimination”.
The report stressed that although government frequently argues that the law is not enforced, it in effect reduces gay men “to criminals”; moreover, that although arrests are rare, statistics show that between 2015 and 2019, 42 cases of sodomy were reported at Namibian police stations. Between 2012 and 2019, 23 men were arrested on sodomy charges.
The LRDC underlines that although arrests on sodomy charges are infrequent, “it is enforced often enough to create a realistic fear of possible arrest on the part of the gay community”.
The LRDC also warns the law has led to damaging policy decisions such as a ban of condoms at prisons, and has contributed to wider discrimination and stigmatisation of gay men and the wider LGBTQ community. “Their [sodomy law] very existence violates the fundamental rights of the individuals who could be affected, as well as creating and reinforcing a culture of homophobia and intolerance against LGBTQ people,” the report states.
“The continued existence of this law cannot be justified,” the report notes, adding that it “interferes with the constitutional and international law rights of individuals in Namibia”.
Dausab will present the two reports to cabinet in the coming weeks for consideration.
The LRDC has prepared an amendment bill for the abolishment of the 33 obsolete laws summarised in the first report, and a proposed bill to repeal the sodomy and unnatural sexual offences law.
The criminalisation of consensual sex between men in Namibia has drawn international and local condemnation for many years and given rise to false perceptions that being gay is illegal in Namibia.
The report highlights that Namibia’s government twice rejected, in 2011 and 2016, to abolish the law in response to calls by the United Nations for Namibia to decriminalise consensual sex between men. Each time, government noted while they refuse to decriminalise sodomy, LGBTQ persons are not victimised or persecuted.
LRDC deputy-chairperson Etuna Josua on Monday underlined that the sodomy law is “obsolete”.
He said the 34 laws identified in the two reports “are not in keeping with the times, no longer relevant or compatible with our constitutional dispensation.”
Responding to questions about the landmark trial to legalise same-sex marriages beginning this week before a full bench of justices at the High Court, Dausab said the time is right “for us to move in a direction that will make all Namibians feel included, that will make all Namibians feel they are members of the Namibian House”.
She underscored that the court’s decision to appoint a full bench of three judges shows “the courts are taking this very, very seriously. It’s almost, for us in Namibia, a watershed moment as a county in terms of what direction our human rights paradigm is taking, and what direction our society is taking.”
She underlined that the current government administration is having important conversations on the issue. “We are having this conversation. Homophobia, transphobia, any phobic tendencies are not state sanctioned. But we must allow people to have their own views. What we should not allow is that there is any active or passive discrimination against any segment of our society. I don’t think that is what we intend to do.”
On the high number of cases related to LGBTQ issues such as family, marriage and safety rights, the minister said the cases offer an “important trajectory in our human rights paradigm at the moment. I think there is an obligation on our courts to go in the direction that I think particularly the LGBTQ community feels they have been heard and listened to. Of course, we have no control over that process, we have to allow it to complete itself.”
The minister also addressed criticism levelled against a recently tabled combating of domestic violence bill amendment that explicitly excludes couples in same-sex relationships from protections contained in the bill.
She said she has not yet responded to the concerns raised in cabinet to “allow the LGBQ community and other members of our society who are interested” to provide further input into the bill.