Dausab v The Minister of Justice (HC-MD-CIV-MOT-GEN- 2022/00279) [2024] NAHC 331 (21 June 2024)

Constitutional law — Fundamental rights — Equality before the law — Article 10 of the Constitution — Article 8 of the Constitution — Right to dignity — Same-sex relationships — Homosexuality — Criminal law — Common Law Sexual Offences — Sodomy — Unnatural sexual offences — Various forms of sexual conduct committed by a male person with another male person are not regarded as criminal, if committed by a male person with a female person — Differentiation which the impugned laws accord to homosexual men amounts to unfair discrimination and thus unconstitutional.

The applicant applied for an order to declare the common law offences of sodomy and unnatural sexual offences, as well as the statutory provisions that incorporates the said offences, unconstitutional. The contention is that these laws, unfairly and irrationally, discriminate against him and other gay men on the basis of sex and sexual orientation, and thus infringe his constitutional right to equality; dignity; privacy; freedom of expression and freedom of  association. The respondents opposed the application and were of the view that there is no merit in the constitutional challenge.

Held that: the test to determine whether there is discrimination under Article 10 of the Constitution as set by the Supreme Court in Müller v President of the Republic of Namibia & another is reiterated and applied. The questioned legislation would be unconstitutional under Article 10(1), if it allows for differentiation between people or categories of people and that differentiation is not based on a rational connection to a legitimate purpose.

Held that: the first step in the analysis to determine whether there is a breach of Article 10(2) is to determine whether there exists a differentiation between people or categories of people. The second step is whether such differentiation is based on one of the enumerated grounds set out in the sub-article. The third step is to determine whether such differentiation amounts to discrimination against such people or categories of people. Lastly, once it is determined that the differentiation amounts to discrimination, it is unconstitutional unless it is covered by the provisions of Article 23 of the Constitution.

Held further that: the various forms of sexual conduct, if committed by a male person with another male person, are not regarded as criminal if committed by a male person with a female person.

Held further that: the enforcement of the private moral views of a section of the community (even if they form the majority of that community), which are based to a large extent on nothing more than prejudice, cannot qualify as such a legitimate governmental purpose.

Held further that: the court is not persuaded that in a democratic society such as ours, with a Constitution which promises the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family and the pursuit of individual happiness, it is reasonably justifiable to make an activity criminal just because a segment, maybe a majority, of the citizenry consider it to be unacceptable.

Held further that: the criminalisation of anal sexual intercourse between consenting adult males, in private, is outweighed by the harmful and prejudicial impact it has on gay men and that its retention in our law is thus not reasonably justifiable in a democratic society.

Held further that: the differentiation which the impugned laws accord to homosexual men amounts to unfair discrimination and thus unconstitutional. The finding of unconstitutionality leads to only one conclusion, namely, to declare the impugned laws invalid.