Maria Amakali   Edward Mumbuu

Justice minister Yvonne Dausab’s relative is suing her and other law-enforcement agencies in pursuit of decriminalising sodomy in Namibia. Friedel Laurentius Dausab is challenging the validity of the Common Law crimes of sodomy and unnatural offences, and all statutory enactments which refer to or incorporate such crimes. 

“This case concerns the criminalisation of consensual sexual acts between men. I challenge this criminalisation as being unconstitutional to the extent that it violates the fundamental rights and freedoms of gay men and men who have sex with men,” said Dausab in his affidavit.

Family ties 

Although Dausab confirmed being related to the justice minister, he would not say how, as it is immaterial. 

“My efforts or us as a country to move into a non-discriminatory egalitarian state for all Namibians, including those who may be LGBTIQ+, has nothing to do with family relationships. The issue here is acting on the promise of the constitution for the review of laws and policies that may not be aligned to the new, post-independent order in
Namibia. 

“We [Friedel and Yvonne] are not siblings. We bear the same surname, but I can definitely tell you that we are not siblings. We don’t share a mother or a father,” Dausab said yesterday. 

Dausab vs State

In the suit filed last year, the justice minister, alongside the home affairs, safety and security minister, the prosecutor general and the attorney general are respondents.

Dausab submitted that the two Common Law crimes, sodomy and unnatural sexual offences, continue to stigmatise and marginalise same-sex couples by “outlawing the most private and intimate expressions of love and identity”. 

Not only do the said laws - although not frequently implemented - violate Articles 8, 10, 13(1), 21(e), and 21(a), but they also encroach upon various international laws.

“The purpose of the impugned laws is to criminalise private conduct of consenting adults which causes no harm to anyone
else, but which fails to conform with the moral or religious views of a section of society,” said Dausab. He added that men who have sex with other men are at risk of being arrested, prosecuted and convicted simply because they chose to engage in sexual conduct which is part of their experience as human beings. 

“Laws, which effectively criminalise the most intimate parts of a romantic relationship, inhibit a person’s ability to freely choose their sexual romantic partners, and to express their love and affection for them,” he noted.

Dausab said he has known that he was gay at the tender age of 14.  “I denied that I was gay for many years, and hoped that I would become attracted to women. After years of repression, I finally told my mother and family that I was gay. I was met with disappointment and rejection,” he continued. This resulted in years of estrangement from his mother and family. During that period, he felt adrift and isolated – which resulted in bouts of anxiety and depression. Due to depression, Dausab was unable to write his final examinations at university, and consequently left without graduating. 

“But while my family eventually became more tolerant of my sexuality, I have nevertheless been repeatedly told to ‘pray the gay away’. I have also been and continue to be acutely aware that I could face invasive criminal investigation and sanction if I were suspected of being homosexual and engaging in the activities prescribed by the impugned laws,” said Dausab.

However, he decided to live as an openly gay man, and has since dedicated over 20 years of his life working as an activist seeking to better the lives and experiences of the LGBTQ+ community in Namibia.

Morality 

Attorney General Festus Mbandeka responded on behalf of all the government respondents, citing that laws against sodomy are directed at the prohibition of homosexual sexual activities, and not at sexual activities between opposite sexes.

He said a majority of Namibians today do not believe that such laws are absolute.

“On the contrary, the very reason that the applicant seeks to enlist the assistance of the court to get rid of the impugned laws is precisely that he is aware that the majority of democratic sentiment in Namibia believes that homosexual sexual activity to be inconsistent with the boni mores of society,” stated Mbandeka.  He said the purpose of the impugned laws is to uphold society’s concept of dignity. 

“There are certain forms of conduct so morally unacceptable that anyone who engages in them undermines their own dignity, and the dignity of society. So, in this case, if there is anything that undermines
the dignity of homosexuals, it is that they choose to engage in conduct that is frowned upon by society,” reasoned Mbandeka. He said it is the law of the land that same-sex marriages are not recognised, and the
law does not allow for their solemnisation. 

The provisions of various international charters also do not have the effect of rendering Namibian laws unconstitutional. 

Mbandeka observed that he agrees with the High Court of Kenya, which held that the decriminalisation of sodomy would contradict the prohibition of same-sex marriage.

“The risk is indeed confirmed by the applicant, who says the reason he yearns for the legalisation of homosexual sodomy is so as to engage in ‘human relationship’, which is read to mean homosexual relationship,” he noted.

Mbandeka said the fact that sodomy may be conducted in one’s private place such as a home does not render such conduct protected under the Constitution. He has since asked the court to dismiss the application.  The AG added that the application is solely concerned with consensual sexual activities, and has nothing to do with sexual activities involving minors or individuals incapable of giving consent to sexual activities. The case is before High Court Judge Shafimana Ueitele, and has been postponed to 16 May to await the ruling on the Digashu matter in the Supreme Court.

Daniel Digashu and Johan Potgieter had married in South Africa, and Anette Seiler-Lilles and Anita Seiler-Lilles in Germany - but both couples now live in Namibia.

The second case involves Namibian Anette Seiler-Lilles, who has been married to German citizen Anita Seiler-Lilles since 2017.

Their lawyers said their cases are not about changing the law to make it legal for same-sex couples to get married in Namibia, but about recognising such marriages celebrated elsewhere. In the Digashu case, the couple, joined by Seiler-Lilles — both foreign nationals married to Namibian citizens - are seeking recognition of their marriages concluded outside Namibia in order to access spousal immigration rights such as permanent residence and employment authorisation.

-mamakali@nepc.com.na