Scrap colonial era common law crime of sodomy, urges Namibia's law reform commission

4 June 2021 · Carmel Rickard

Namibia’s law reform and development commission has released a detailed report on what it terms the ‘possibly obsolete’ common law crimes of sodomy and unnatural offences. It traces the origins of these offences as well as their applicability today and concludes that the laws should be repealed, in line with the similar moves in many other countries. This is partly because they are ‘victimless crimes that serve no practical purpose whatsoever’ and partly because to scrap these laws would help recognise the inherent dignity ‘of all members of the human family’.

Read the report

Was the release of Namibia’s special report that recommended scrapping the common law crimes of sodomy and unnatural offences specially timed as a prelude to international Pride Month? Even if it was not, the report itself, and some of the high-profile reaction to it, will have been a cause of celebration to many in Namibia and elsewhere.

The writers noted that the country’s own national ombudsman recently issued a report saying that the continued criminalisation of sodomy in Namibia made gay men vulnerable to discrimination and intruded on some of their most basic constitutional rights, particularly the right to dignity. Obviously agreeing with this conclusion, the law commission said there was no Namibian law that ‘directly criminalises a person’s sexual orientation’ but that because sodomy was criminalised it ‘inevitably causes some to believe that homosexuality itself is illegal in Namibia.’ This was not in fact so, however.

The question of these common law crimes had been raised in Namibia's last two Universal Periodic Reviews at the United Nations, and both times there were calls for Windhoek ‘to de-criminalise consensual homosexual activities’.

Inherited

The report also pointed out that these were not ‘indigenous’ laws, enacted by democratically-elected representatives of the Namibian people. Instead, they were colonial laws, inherited from South Africa at the time of Namibian independence.’

Under Namibia’s constitution, all laws in force at independence including the common law, remain in force ‘unless they are repealed by Parliament or declared unconstitutional by a Namibian court.’ And, while South Africa has long rid itself of these laws, they are still very much present in Namibia even though they are now almost never used.

In fact, says the report, the low number of arrests for these offences means that the law is ‘particularly invidious’. ‘It is not being used with sufficient frequency to accomplish any social objective, but it is enforced often enough to create realistic fear of possible arrest on the part of the gay community.’

Intolerance

In addition, while these laws are seldom enforced, ‘their 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 LGBTI people. These attributes make the laws in question very likely unconstitutional.’

One of the most shocking results of the laws’ continued presence in Namibia is that they were used to make ‘detrimental policy decisions’. The example given by the report is where the Namibian Correctional Services refused to provide condoms for inmates of prisons. They were to have been provided to prevent the spread of HIV/AIDS. But the refusal to make them available was on the grounds that officials of the department ‘do not want to be complicit with the crime of sodomy taking place in correctional facilities, combined with the fact that many inmates fear the stigmatisation that can come from getting condoms in prison, which might lead some to conclude that they engage in homosexual relationships.’

This attitude led to ‘dangerous and absurd consequences’, the report notes, giving as an example a 2017 admission by the Minister of Health who said that ‘the ministry had been sneaking condoms into correctional facilities.’

Sin

The report also quoted legal commentators who warned against equating ‘crime with sin’ to justify the enforcement of morality on religious grounds.’ It went on to stress that, while some disapproved of homosexuality based on their religious views, ‘Namibia is a secular state’ and there was a clear commitment by the state to ‘maintain a separation between law and religion’.

If there was no lawful justification for the continuation of these laws, then the criminalisation of sodomy ‘actually amounts to imposing certain morals which are rooted in religious precepts, on people who do not subscribe to these morals.’

The writers deal with the changing law on similar issues in other countries as well as international law that is binding on Namibia. If these common law crimes were not repealed, Namibia’s law on sodomy and unnatural sexual offences could well be challenged at the international level in future, they warn. ‘Given that several of the monitoring committees have already pointed to these laws as violations of Namibia’s international commitments, it is likely that an international challenge to these laws would be successful.’

Criminals

‘Although Namibia as a state has on many occasions reported that it does not criminalise homosexual people, or gay men in this instance, one cannot deny the stigmatisation that these laws create for homosexual men.

‘In … fact, these laws reduce them to criminals.’

Finally, the report concludes, ‘The Namibian house encompasses all Namibians and the laws on sodomy and unnatural sexual offences are contrary to fostering a culture of dynamic inclusion for all members of society, including the LGBTI community. These laws should be repealed.’

Reaction

The report’s release has sparked comment across the spectrum. While criticism from conservative religious groups might have been expected, the positive, supportive response from Namibia’s First Lady, Monica Geingos, might have surprised many. She has in the past spoken out on the need to scrap these laws, but with the release of the report she not only expressed her backing for the repeal recommendation – she went further and challenged certain critics on social media, saying they were stirring up homophobia and getting their facts wrong.

Carmel Rickard

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