The common law proscription of sodomy as infringement of the Namibian constitution

Abstract

Abstract provided by author

The common law crime of sodomy that is prohibiting homosexual conduct between consenting adult men in private violate the right to equality because they unfairly discriminate against adult men on the basis of sexual orientation. Although Namibia's Constitution does not make express mention of sexual orientation, this does not mean that the homosexuals are totally ignored by the Constitution. But regardless of what the Supreme Court decides in the Frank case, the law against consensual sodomy is quite likely unconstitutional. Firstly, even in the unlikely event that our Constitution is not found to protect the rights of homosexuals directly the current law violates the equality provisions of Article 10 because it treats men differently from women. Homosexual activity between women is not punishable while homosexual activity between men is

Secondly there is the right to privacy. Article 13 protects person in the privacy of their home. Since the Constitution protects people against the spectre of hidden cameras in our bedrooms or law enforcement agents hiding in the wardrobes, how would the police go ahead enforcing a law that criminalize consensual sodomy? Thirdly private and consensual sexual encounter between adults are at the very core of the concept of any meaningful right to privacy. There is no need to preserve any portion of the law on sodomy for preventing the public display of intimacies better conducted in private settings. There is no need to preserve any portion of the law on sodomy for preventing the public display of intimacies better conducted in private setting. The purpose of crime sodomy is to criminalize private conduct of consenting adults, which causes no harm to anyone else. Simply because such conduct fails to conform to the moral or religious views of a section of a society. The crime has a grave effect on the rights and interest of homosexuals and deeply impairs their fundamental dignity

If Namibia is to be respected globally as a nation, which upholds human rights, its national and international duties not to discriminate against homosexuals must be kept in mind and implemented. What remains of the law on sodomy is a manifestation of extreme intolerance and should be repealed