Namibia’s Supreme Court to Hear Appeal Against Landmark Ruling Decriminalizing Homosexuality
A landmark High Court judgement in Namibia, which declared the common law crimes of sodomy and “unnatural sexual offences” unconstitutional, is set to be challenged in the country’s Supreme Court. The Office of the Government Attorney filed an appeal notice in the Supreme Court earlier this week, citing errors made by the High Court in its judgement.
The High Court judgement, delivered on June 21, found that the common law offences differentiate between men and women, and between gay men and heterosexual men, amounting to unfair discrimination and being unconstitutional. The court also stated that it is not justifiable to make an activity criminal “just because a segment, maybe a majority, of the citizenry consider it to be unacceptable”.
The appellants, including the attorney general, minister of justice, and others, argue that the High Court made an error by considering only one of the grounds raised by the applicant, Friedel Dausab, who sought to have the common law criminalisation of male anal sex and “unnatural sexual offences” declared unconstitutional. They claim that the court failed to consider the norms of Namibian society and combined public opinion with “fundamental underlying and enduring norms, aspirations, expectations, sensitivities, moral standards, relevant established beliefs, social conditions, experiences and perceptions of the Namibian people”.
The appellants also argue that the High Court failed to appreciate that where distinctions are drawn between the conduct of males and females, it amounts to differentiation, which is not the same as discrimination. They claim that laws prohibiting sexual acts between men further a rational governmental purpose, namely upholding the sexual customs of Namibian society.
The decision to lodge an appeal has been met with disappointment from human rights activists, who fear that it will increase stigma and discrimination against the LGBTQI+ community. Friedel Dausab, the applicant who brought the case, expressed his disappointment, saying that it is “quite sad that the government would use precious national resources to go after a powerless minority”.
The case is expected to be heard in the Supreme Court, which will have the final say on the matter. If the appeal is successful, it could potentially overturn the High Court’s judgement and maintain the criminalisation of homosexuality in Namibia.