|Dausab v Minister of Justice and Others
|High Court of Namibia
Friedel Dausab, a gay Namibian man, is challenging the compatibility of the common law offence of sodomy and related offences with his rights under the Constitution of Namibia. The relevant offences derive originally from the imposition of Roman Dutch law on South Africa, and were inherited from South African law into Namibian law when Namibia became an independent nation in 1990. The offences are rarely enforced. Nonetheless, the existence of the offences underpins and is seen as justifying discrimination against LGBT people in Namibia. It is also used as an excuse not to introduce public health measures such as, for example, the distribution of condoms in prisons. The case was filed in the High Court of Namibia in June 2022.
The common law offences of sodomy and ‘unnatural sexual offences’ were originally introduced as part of colonial rule in South Africa but became part of Namibian law when Namibia gained independence from South Africa in 1990. They were subsequently found to be contrary to the South African Constitution and have not been part of South African law since the ground-breaking judgment in National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others in 1998. To date, there has been no equivalent challenge to the existence of the offences in Namibia.
On the contrary, the offences have made their way into the statute law of Namibia via a number of different legislative references. Most significantly, ‘sodomy’ is listed as a Schedule 1 offence in the Criminal Procedure Act 51 of 1977, meaning that either a police officer or an ordinary citizen can arrest anyone reasonably suspected of having committed the offence without needing a warrant. If the suspect attempts to flee from the arrest, it is legal to use lethal force to kill them.
The offences have been interpreted to apply only to sexual activity between men, though their existence is used to justify discrimination and prejudice against all LGBT people.
The case is being brought to establish that the offences are incompatible with various rights protected by the Constitution of Namibia, as well as with international human rights law.
The Applicant, Friedel Dausab, is a gay Namibian who has experienced the impact of these laws in both his personal and professional life. He is an expert in HIV prevention and treatment and also has many years of experience as a LGBT rights activist. He is bringing the case in his personal capacity.
The Respondents are the Minister of Justice, the Minister of Home Affairs, Safety and Security, the Minister of Defence, the Prosecutor General and the Attorney General. Some of the Respondents are cited because they are directly involved with the content and enforcement of the criminal law, others are cited because they are responsible for specific pieces of legislation in which the offences are mentioned, and which will therefore need to be amended if the case is successful.
Mr Dausab is arguing that the relevant offences are incompatible with his constitutional rights to equality, dignity, privacy, freedom of association and freedom of expression. He is also arguing that the crime of ‘unnatural sexual offences’ is too vague to be compatible with the Constitution. He is also relying on his rights under international human rights law, which is automatically incorporated into Namibian law under relevant constitutional provisions. Finally, the Applicant will invite the Court to consider the substantial consensus against criminalisation which can be found in the comparative law from other jurisdictions, in particular South Africa and Botswana.
The Applicant seeks a declaration that the relevant offences are inconsistent with the Constitution and therefore invalid. He is also seeking various orders that would provide for the invalidity of any historic convictions for private, consensual, same-sex sexual activity.
The High Court of Namibia heard the case on 31 October 2023 and a decision is expected on 17 May 2024.
THE HUMAN DIGNITY TRUST’S ROLE
The Applicant is represented by Gilbert Marcus SC, Natasha Bassingthwaighte, Ramon Maasdorp, Michaela Kritzinger and AngulaCo Inc. The team is supported by the Human Dignity Trust with assistance from Decherts LLP.