Public view on sodomy ‘invalid’

"The Attorney-General's affidavit supported and propagated homophobic sentiments. It sent a clear message that the state considers homosexual love and relationships unacceptable. This reaction exacerbates the unfair discrimination against homosexuals and reinforces homophobic attitudes."

This is what LGBTQ+ activist Friedel Laurentius Dausab said recently in response to a statement by Attorney-General (AG) Festus Mbandeka.

It forms part of a case in which Dausab is challenging the constitutionality of laws against sodomy and "unnatural" sexual offences.

He argued that gay men's constitutional rights to dignity, freedom, equality and protection against discrimination are violated by these laws.

"There is nothing about sodomy that affects the dignity of those who participate in it. A consensual sexual act between loving adult partners does not humiliate the participants," Dausab's statement read.

According to him, the law causes a veil of fear over individuals who are engaged in a private, consensual and intimate expression of their sexual identity, which does no harm to anyone.

Stigma

Dausab claimed the laws promote stigma and exclusion and lead to the criminalisation of consensual sexual acts between men.

"The respondent [Mbandeka] argues that gay and bisexual men have voluntarily chosen not to obey social norms, but the expression of one's sexual identity is a core facet of human experience. Gay and bisexual men who suppress this part of themselves do so at a great personal cost," he said in his statement.

The AG further argued that the stigma attached to sodomy does not stem from the law, but from societal attitudes. To this, Dausab retorted that the law reinforces stigma attached to homosexuality.

Public opinion ‘invalid’

"[Mbandeka] says that the Namibian public's moral view of sodomy is decisive for the validity of the laws. This suggests that constitutional values are subordinated to public opinion."

Dausab rejected this argument and said the public's position should not determine what is constitutional.

"Unlike the respondent, I do not base my case on public opinion, but on the constitution."

He said the protection of public morals of one part of society - even if it is the majority of society - cannot limit the behaviour of another part of society. Especially behaviour which, according to him, causes no harm to others.

“This case is about the constitutionality of laws that infringe on adults' consensual expression of their sexual identity. These laws restrict this expression and therefore infringe on a host of constitutional rights and freedoms.”

Dausab further pointed out that the AG has not provided any evidence to substantiate claims that the majority of the Namibian population considers homosexual behaviour immoral and unacceptable.

Impact

The activist further pointed out that Mbandeka did not deny the impact of the laws on gay and bisexual men in his statement.

He apparently did not deny that these men live in fear of arrest and prosecution and suffer the humiliation of being labelled as criminals.

"In fact, he confirmed the devastating impact the laws have on the lives of gay and bisexual men when he admitted that the absence of the sodomy law 'will lead to same-sex couples living together in intimate relationships akin to a family'. In other words, the respondent admits that the laws stand in the way of gay and bisexual men developing meaningful intimate relationships," Dausab said.

He emphasised that the current proceedings do not challenge the ban on same-sex marriage, adding that if the court declares the sodomy laws unconstitutional, it will not contradict the ban on same-sex marriage.

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