sexual health and human rights in the african region - The ICHRP

against people of sexual orientation that was different from heterosexual
orientation. The crime stigmatizes gay men and encourages discrimination
against them in many sectors of socio-economic life. The adverse consequences
of criminalizing consensual sex between men were rendered more serious
because gays and lesbians are a political minority and cannot easily marshal
political power to secure favourable legislation for themselves. In the result, gay
men live insecure and vulnerable lives because of their sexuality as the legal
system treats them as criminals.
[82] In National Coalition for Gay and Lesbian Equality and Others v Minister of Justice and
Others, the Court was emphatic that, other than societal prejudice, and an
argument for the enforcement of the private moral views of the community,
there was no justification for criminalizing consensual sex between men.
Prejudice cannot qualify as a legitimate purpose. Equally, the religious view
which holds that sexual relationships are for the purpose of procreation could
not be a legitimate purpose for the purposes of justifying limitation of freedom,
not least because there are also religious views that do not share this view. 327 In
short, the crime of sodomy constituted a severe limitation of a gay man’s right to
equality in sexual orientation.
[83] The Court also said that the right to equality was not the only constitutional right
that was adversely impacted upon by the crime of sodomy. The right to equality
intertwines with the right to human dignity guaranteed by section 10 of the
Constitution. Human dignity requires acknowledging every person is of equal
value and equal worth. According to the Court, the crime of sodomy punishes
gay men for conduct that is part of their experience as human beings and does
not harm a third party. Punishing people for what they are is profoundly
disrespectful of the human personality and is a violation of human dignity. Such
punishment degrades and devalues gay men in society. It is a palpable invasion
of their dignity and a breach of section 10 of the Constitution.
[84] Equally, the Court said that the crime of sodomy was a violation of the right to
privacy contrary to section 14 of the Constitution. Sodomy constitutes a manifest
invasion of a constitutional right that is intended to protect the inner sanctum of
a person. Respecting the right to privacy requires us to recognise that we all have
a right to a sphere of private intimacy and autonomy which allows us to
establish and nature human relationships without interference from the outside
community. The expression of sexuality is a core part of the sphere of private
intimacy. A crime that punishes the expression of sexuality that is consensual
and does not harm another person constitutes a breach of privacy.
327 On this point the Court drew from S v H 1995 (1) SA 120 (High Court of South Africa); S v K 1997 (9)
BCLR 1283 (High Court of South Africa). These are cases where at High Court level, it was held that after
the coming into operation of the Interim Constitution of the Republic of South Africa, the common law
crime of sodomy constituted a breach of the constitutional right to equality.
102