• CHRISTIE KEULDER
THE STRUGGLE AGAINST the criminalisation of homosexuality is at least 500 years old. In the ongoing case of Dausab v the Minister of Justice, the Namibian High Court has to decide whether or not laws that criminalise sodomy among men are unconstitutional or not.
The state, through its legal representative, the attorney general (AG), indicated it will defend the constitutionality of laws that criminalise sodomy and prevent the normalisation of homosexuality in Namibia.
Why is the AG so adamant that these laws should be defended given that the Law Reform and Development Commission, in a report (The Abolishment of The Common Law Offences of Sodomy and Unnatural Sexual Offences), recommended, in November 2020 already, that these laws are obsolete and should be abolished.
The state premises its defence on the view that sexual acts such as sodomy are unnatural, abnormal, unusual, and therefore offensive to the morality of Namibian society.
For example, it sees no difference between sodomy on the one hand, and incest, and bestiality on the other.
The AG also argues that “the real question is whether ‘public mores’ have shifted to such a point that the law must find that such laws offend the societal mores. The answer, with respect, is no (emphasis added).
“The majority of Namibians today do not believe that such laws are obsolete or contrary to public policy.”
For him, protecting social mores “is a rational and legitimate governmental purpose […] the purpose of the law 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 which undermines the dignity of homosexuals, it is that they choose to engage in conduct that is frowned upon by society.”
In short, the AG claims the state acts in the nation’s interest when it defends criminalising sodomy, and that he is conforming with public opinion.
His gauge of public opinion is the elected bodies of parliament. As these bodies have made no effort to repeal the relevant legislation, his conclusion is that public opinion has not shifted enough to warrant changes.
This begs the question: Is he, and the state for that matter, using ‘public mores’ to mask the continued oppression of a socio-political minority?
A concept that could help us reflect on Namibian public opinion on decriminalising homosexuality, and all related aspects, is “toleration”.
Toleration is defined as “a refusal to impose punitive sanctions for dissent from prevailing norms or policies or a deliberate choice not to interfere with behaviour of which one disapproves”.
It is crucial for addressing the problem of socio-political and cultural diversity and thus the functioning of any liberal democracy.
Toleration requires no approval, or agreement, or similarity. It accepts diversity and presents a means to deal with it, even if it means only doing nothing (vindictive) about it.
Round 8 of the Afrobarometer survey conducted in 34 African countries between 2019 and 2021 asked a battery of frequently used toleration questions that probe public feelings about having possible members of unpopular groups – such as homosexuals, supporters of different political parties, members of different ethnic and religious groups, immigrants and foreign workers – as immediate neighbours.
Respondents could indicate they would “dislike it strongly”; “somewhat dislike it”; “would not care about it”; “somewhat like it”; or “like it very much”.
The toleration level is determined by combining the last three response options.
Namibia (64%) was the third most tolerant of homosexuality on the continent behind Cabo Verde (82%) and South Africa (71%).
Overall, Namibia ranked 43 percentage points above the African average of 21%.
Mauritius (59%), Mozambique (51%), Botswana (50%) and Angola (37%) also rank among the most tolerant.
Of the seven most tolerant countries, only Namibia and Mauritius still have laws that criminalise homosexuality. Even Ivory Coast, where only 19% of citizens expressed toleration with homosexuality, has abolished anti-gay laws.
The data also shows that toleration in Namibia is consistent.
Those tolerant of homosexuality are also tolerant of ethnic, religious, and political diversity, and show little sign of being xenophobic.
This degree of toleration may well contribute to the political stability Namibia has enjoyed since Independence.
The African data shows there may well be a direct positive correlation between the degree of tolerance toward homosexuality and legislative and policy reform to decriminalise it.
Namibia is an outlier to this pattern. The question is why? Who is blocking reform? The people, or those in positions of power?
Ultimately what needs to be overcome is not homosexuality but the repression that impedes living homosexuality.
In a democracy, it is the state’s job to protect socio-political minorities, not repress them.
- Christie Keulder is a Namibian political scientist. His company Survey Warehouse has been the Namibian national partner for Afrobarometer since 1999.