Growing the Living Tree

On 21 June 2024, the High Court of Namibia in Friedel Laurentius Dausab vs. The Minister of Justice unanimously held that laws criminalizing same-sex relationships (so-called sodomy laws) are unconstitutional and invalid. The Court found that “common law offenses of unnatural sexual offenses” and the inclusion of the “crime of sodomy” in three statutory laws (Schedule 1 of CPA, Schedule 1 of Immigration Control Act of 1993, Section 68(4) of the Defence Act of 2002) violate the equality and anti-discrimination principle enshrined in the Constitution of Namibia. The judgment significantly advances anti-discrimination law jurisprudence in Namibia, particularly in relation to the grounds of sexual orientation and the interpretation of constitutional equality provisions.

Expanding Anti-discrimination Law Jurisprudence

The Court’s expansive interpretation of the equality clause in Article 10 has far-reaching implications for the protection of human rights in Namibia.

Firstly, the Court recognized sexual orientation as a protected ground although it is not explicitly listed as a specific ground in Article 10(2), rejecting a narrow, literal interpretation. It thus demonstrated a willingness to adapt constitutional interpretation to evolving social norms and human rights standards on sexual orientation. While the judgment doesn’t explicitly cite these standards, they likely include international human rights instruments such as the Yogyakarta Principles, United Nations Resolutions on sexual orientation and gender identity, and the growing body of comparative jurisprudence from other jurisdictions that have recognized sexual orientation as a protected ground. This approach aligns with the living tree doctrine of constitutional interpretation which holds that a constitution should be read broadly and progressively to adapt to the changing needs of society. The Court’s reasoning in this regard is particularly significant. It held that “the fact that a ground is not listed in Article 10(2) is not a license for the law to discriminate on that ground” (para. 44). The judgment thus advances a more nuanced understanding of gender discrimination by recognizing its intersection with sexual orientation. This expanded view opens the door for the recognition of other non-enumerated grounds of discrimination in future cases, potentially including grounds such as disability, age, or gender identity which are recognized in many modern constitutions like Article 9 of the Constitution of South Africa but not explicitly mentioned in the Namibian Constitution.

Substantive Equality over Formal Equality

The Court’s analysis of the rationality and legitimacy of the impugned laws demonstrates a rigorous and principled approach to the equality test under Article 10 of the Namibian Constitution. This approach significantly raises the bar for the state in justifying differential treatment and sets a precedent for future discrimination cases. The Court’s scrutiny of the purported justifications for criminalizing same-sex conduct was particularly intense. The judgment squarely addressed the question of what legitimate purpose could be served by such criminalization, asking pointedly: “What threat does a gay man pose to society, and who must be protected against him?” (para. 28). This framing of the issue compelled a critical examination of the underlying rationales for the impugned laws, moving beyond mere acceptance of historical or traditional justifications. The Court’s rejection of moral majoritarianism as a legitimate basis for discrimination is a cornerstone of this judgment and marks a significant jurisprudential development. By asserting 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 purpose” (para. 28), the Court established a crucial principle and reinforced a counter-majoritarian understanding of constitutional rights.

Moreover, the Court demonstrates a sophisticated understanding of equality that transcends mere formal equality, aligning with contemporary constitutional theory. By rejecting the Respondents’ contention that the impugned laws constitute mere differentiation rather than discrimination (para. 33), the Court implicitly embraced the concept of substantive equality. Instead of analyzing the legal distinctions in a formalistic manner, the Court considered the deleterious and prejudicial effects of the laws on gay (or queer) men, thus engaging with the laws’ practical consequences. It thereby relied on the precedent established in Müller v President of the Republic of Namibia (1999) which defined discrimination within the Namibian constitutional context as encompassing an element of unjust or unfair treatment (para. 56), reaffirming and extending a substantive approach to equality. This approach is a progressive evolution of Namibian constitutional jurisprudence, resonating with developments in other jurisdictions as well as Namibia’s binding commitments under ratified human rights treaties. These include the ICCPR, the CEDAW, and the CERD which increasingly recognize the limitations of formal equality in addressing systemic discrimination and promoting social justice.

Comparative Law as the Guiding Light

The Namibian High Court in Dausab continued the trend of relying on comparative law as a deliberative resource, similar to what was observed in the Digashu and Seiler-Lilles case. This approach reflects the growing tendency of Namibian courts to use comparative methods when addressing critical constitutional questions. In Dausab, the High Court drew upon jurisprudence from South Africa, Candana, the United Kingdom, and Ireland to form its reasoning on the decriminalization of the sodomy law. The use of comparative law in Dausab further exemplifies the “cross-fertilization” or “doctrine-swapping” approach in Namibian constitutional interpretation, where courts import and adapt legal concepts from other jurisdictions to address complex issues in their own context, while still maintaining Namibia’s unique constitutional framework, characterized by its post-apartheid origins, hybrid legal system (i.e., Roman-Dutch civil law, English common law, and Customary law), and emphasis on transformative constitutionalism. While drawing insights from other jurisdictions, Namibian courts developed a domestic jurisprudence that addresses the country’s specific legal and social challenges. This approach allows Namibia to benefit from global legal developments while maintaining its sovereign ability to interpret and apply constitutional principles in a manner that respects its distinct historical, cultural, and social realities. This “cross-fertilization” approach in Namibian constitutional interpretation could potentially enhance queer rights (and other minority rights) concerning self-perceived gender identity, same-sex marriage, surrogacy rights, or adoption rights.

Queer Rights within the Framework of the Namibian Constitution

The High Court arrived at this expansion of queer identities and their rights by squarely placing same-sex relationships within the framework of constitutional rights and philosophies, namely, constitutional morality, the right to autonomy, the right to live a dignified life, and the right to privacy.

The Court’s expansion of queer rights through the lens of autonomy is evident in several aspects of its reasoning. The Court critically questions the legitimacy of criminalizing consensual sexual conduct between adults based solely on moral disapproval. By asking “What threat does a gay man pose to society, and who must be protected against him?” (para. 28), the Court implicitly recognizes the principle of personal autonomy in intimate relationships. Furthermore, the Court’s rejection of moral majoritarianism as a basis for criminalization (paras. 29-30) strongly affirms individual autonomy.

The Court’s emphasis on dignity is particularly evident when it references the Constitution’s promise of “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family” (para. 30). By framing the issue in terms of dignity, the Court elevates the status of queer individuals to that of equal members of society deserving of respect and recognition. Moreover, by rejecting “extreme disgust and abhorrence” (para. 27) as a basis for criminalization, the Court asserts that societal prejudices cannot diminish the dignity of queer persons.

The Court’s analysis demonstrates a sophisticated understanding of the relationship between morality and law in a pluralistic society. By questioning whether the criminalization of consensual same-sex conduct can be justified solely on the grounds of “moral disapproval”, the Court implicitly recognizes the distinction between private morality (individual morality) and public law (social vs. constitutional morality). This approach resonates with the harm principle of John Stuart Mill in legal philosophy, which posits that the only legitimate basis for criminalization is the prevention of harm to others, not the enforcement of private moral views. While not as explicitly discussed as the other rights, the right to privacy is implicitly recognized throughout the Court’s reasoning. The Court’s emphasis on privacy rights in questioning laws that criminalize “consensual anal intercourse between consenting males in private” (para. 28) is a key step in decriminalization. However, this framing should not be construed as limiting LGBTQ+ expression to private spaces only. The judgment’s broader focus on equality and dignity implies that LGBTQ+ individuals should have the same rights to public expression of affection as heterosexual couples.

While legal change of course does not change society’s minds and hearts overnight, the High Court of Namibia judgment is a milestone with the potential to impact queer lives in Namibia significantly. It not only decriminalizes consensual same-sex relationships but affirms the substantive equality, dignity, and autonomy of queer individuals. By establishing a crucial legal precedent for challenging other discriminatory practices, the judgment waters the living tree of the Constitution and will help it to branch out even further.