Scrapping of sodomy law on the cards

JANA-MARI SMITH



WINDHOEK

Namibia’s justice minister Yvonne Dausab yesterday said government is not guilty of state-sanctioned homophobia, and has heard the cries of the lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI) community for full equality before the law.

“No Namibian should be comfortable with any part of our society feeling they are second-class citizens, that they are being excluded or stigmatised and discriminated against,” she said.

The minister was speaking at the handing over of two pivotal reports compiled by the Law Reform and Development Committee (LRDC) to the justice ministry yesterday, 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, concluded that “the existence of the crimes of sodomy and unnatural sexual offences amounts to unconstitutional discrimination”.

The report stressed that although government frequently argues 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, a total of 42 cases of sodomy were reported at Namibian police stations. Between 2012 and 2019, 23 men were arrested on sodomy charges.

The LRDC underlined that although arrests on sodomy charges are infrequent, “it is enforced often enough to create realistic fear of possible arrest on the part of the gay community”.

The committee also warned that the law has led to damaging policy decisions such as the ban of condoms at prisons, and has contributed to wider discrimination and stigmatisation of gay men and the wider LGBTQI community.

Obsolete

“The continued existence of this law cannot be justified,” the report noted, 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 criminalisation of consensual sex between men in the country has drawn international and local condemnation for many years, and given rise to false perceptions that being gay is illegal in Namibia.

The report highlighted that government twice rejected - in 2011 and 2016 - to abolish the law in response to calls by the United Nations (UN) for Namibia to decriminalise consensual sex between men. Each time, government noted while they refuse to decriminalise sodomy, LGBTQI persons are “not victimised or persecuted”.

LRDC deputy chairperson Etuna Josua yesterday underlined that the sodomy law is “obsolete.”

He said the laws identified in the two reports “are not in keeping with the times”, and are “no longer relevant or compatible with our constitutional dispensation”.

Equal rights

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 further 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 said.