Law schools encourage students to remain neutral, upholding the rule of law and advocating for justice without fear or favour. 

This principle lies at the heart of legal practice, where attorneys defend the accused, regardless of their personal beliefs. Recently, a prominent Namibian lawyer sparked a national debate by advocating for the decriminalisation of prostitution. 

This move has ignited intense discussions about constitutional rights, morality and the potential consequences for marriage and family structures in Namibia.

Freedom Under Article 21 and the Right to Trade

The Namibian Constitution safeguards fundamental freedoms in Article 21, which include the right to pursue any trade or occupation. This provision could serve as a legal basis for decriminalising prostitution, framing sex work as a commercial transaction between consenting adults. If the law allows individuals to engage in various trades, why should prostitution be excluded?

Opponents argue that the trade is inherently exploitative, and that decriminalisation would normalise an industry associated with human trafficking and abuse. 

However, supporters counter that criminalisation simply drives the industry underground, making sex workers more vulnerable to violence and exploitation. Legalising and regulating prostitution could grant sex workers labour rights, protection and medical support, addressing many concerns raised by opponents.

Locus Standi, Right to challenge laws

For a case advocating decriminalisation to succeed, the lawyer in question must establish locus standi, or legal standing, to challenge the existing law. In Namibian jurisprudence, an individual must show that they are directly affected by a law, or represent a group suffering from its enforcement.

In this context, sex workers themselves, human rights’ organisations or even academics advocating for policy change could establish a basis for challenging the laws which criminalise prostitution. However, due to societal stigma, many sex workers may hesitate to come forward, fearing further victimisation. This underscores the importance of legal representatives and activists who advocate for them.

The Digashu sase and its relevance

The case of Digashu v Minister of Home Affairs represents an important precedent in Namibia’s legal landscape, as it focused on the constitutional interpretation of equality and human rights. In this case, the courts were tasked with determining whether the government’s refusal to recognise same-sex marriages contracted abroad violated constitutional protections. The case highlighted the necessity of applying legal principles without bias or moral interference.

A similar legal argument could be made for the decriminalisation of prostitution. If the State cannot discriminate against individuals based on their private consensual relationships, can it justifiably criminalise a consensual transaction between adults? 

The Digashu case exemplifies how courts can acknowledge evolving societal norms and reinterpret laws in ways that uphold constitutional rights.

Prostitution reality in Namibia

The harsh reality is that prostitution exists in Namibia, regardless of its legal status. Prominent individuals, including politicians, business leaders and even law- enforcement officers, are often known to utilise the services of sex workers. This hypocrisy raises a crucial question: why should the law punish one party while allowing the other to go free?

By criminalising sex work, the law fosters an environment where workers face exploitation without legal recourse. If decriminalised, the industry could be monitored and regulated, ensuring that sex workers operate in safe conditions. 

This could also reduce the spread of sexually-transmitted infections and enhance public health initiatives.

Protecting marriage, family values

Despite valid legal and practical arguments for decriminalisation, many Namibians strongly oppose it on moral and religious grounds. Critics argue that legalising prostitution would undermine family values, leading to an increase in extramarital affairs and a decline in marriage rates.

Traditional and religious institutions warn that decriminalisation could contribute to the breakdown of marriages, as it may encourage more men to seek alternative sexual partners outside of wedlock. Additionally, the accessibility of legalised sex work could deter individuals from entering long-term committed relationships, ultimately impacting the social fabric of the nation.

However, proponents argue that laws should not be solely based on morality, but rather on principles of justice, fairness and human rights. The State’s role is not to police morality, but to create laws which ensure safety, dignity and equality for all citizens.

A call for reform and open debate

The issue of decriminalising prostitution is complex, and demands a multi-faceted approach. Legal experts, policymakers, religious leaders and civil society must engage in a meaningful dialogue to find a solution which balances constitutional rights with societal concerns.

One potential compromise is the implementation of a regulatory framework where sex work is legalised but closely monitored to prevent abuse and exploitation. This could involve licensing sex workers, establishing safe work environments and enforcing strict laws against human trafficking and under-age prostitution.

Ultimately, the Namibian legal system must adapt to address contemporary social issues, while upholding fundamental rights. Whether or not prostitution is decriminalised, it is undeniable that this conversation must take place. Ignoring the reality of sex work only perpetuates injustice and places vulnerable individuals at risk.

*Brian Ngutjinazo is a final-year law student at the University of Namibia.