ProBono on Immoral Practices

The Combating of Immoral Practices Act 21 of 1980 is a law that is much misunderstood. Many have called for it to be repealed, wrongly believing that it criminalises homosexuality in some way. But this is not the case.
So, what does this outdated “South West African” statute inherited by Namibia at independence actually cover?
Before reviewing the Act’s provisions, let us note at the outset that it uses a number of undefined terms that could cover homosexual acts (“sexual act”, “immoral act” and “proposals… for immoral purposes”). The Act defines only the term “unlawful carnal intercourse” which is “carnal [sexual] intercourse between persons who are not married”. As one High Court case has suggested, this phrase could cover all “sexual interaction” between persons who are not married to each other – but it is generally understood to refer primarily to sexual intercourse outside marriage.
However, the law does not forbid any sexual acts in general – it forbids certain sexual conduct only in the context of sex work, public sexual displays, abuse of children under age 16 or various other kinds of exploitation.
Most of the statute is concerned with various offences related to sex work. The statute does not criminalise the actual act of prostitution (engaging in sex for reward). Instead, it criminalises a number of surrounding activities. The acts which are criminalised by the statute are primarily public manifestations of sex work (such as public solicitation) or actions by third parties, particularly “pimps” and brothel-owners.
For instance, it is illegal under the Act to solicit or “make any proposals to any other person for immoral purposes” in a public street or place or to exhibit oneself in an indecent dress or manner in public. This law also makes it illegal to commit “any immoral act” with another person in public – but not in private.
This law makes it illegal to keep a brothel, to “procure” any female to have “unlawful carnal intercourse” with another person, to become a prostitute, or to join a brothel. It is also an offence to entice (bribe or persuade) a female to a brothel for the purpose of prostitution, to conceal (hide) a female who has been enticed to a brothel, to detain a female against her will in a brothel, or to otherwise detain a female for the purposes of unlawful carnal intercourse with a male. More directly, the law makes it illegal to assist in bringing about “the commission by any person of any immoral act with another person”, or to receive any money for the commission of such an act.
A brothel is defined as “any house or place kept or used for purposes of prostitution. (The definition was once wider, but it was narrowed by Namibia’s High Court in the 2002 Hendricks   workers, without actually being applied to prevent or restrain sex work. It simply keeps sex work of all kinds in the shadows. So the law certainly has some problems, but its provisions do not specifically target members of the gay and lesbian community in any way.
The key law of concern for the gay community is not this statute, but the common law provisions that criminalise sodomy and so-called “unnatural sex acts” between consenting male adults. (Common law crimes are crimes that have developed through successive court cases instead of being defined by statutes enacted by Parliament. Many crimes – such as murder and assault – are common law crimes.)
There is no common law or statute law criminalising any sexual act that takes place between consenting adult women in private. Only sexual acts between men are criminalised, as sodomy or “unnatural sex acts”.
The calls from gay and lesbian activists for the repeal of the Combating of Immoral Practices Act thus seem misplaced. The top priority for repeals should be the common-law crimes on sodomy and unnatural sexual acts.
Namibia’s stance on sex work warrants reconsideration, but whatever general approach is decided on, Namibia will always need legal mechanisms to protect underage boys and girls and persons with mental disabilities against sexual abuse and coercion into sex work. Adult men and women will also need protection against exploitation by pimps, and against being drugged or detained for purposes of sex, no matter how sex work is regulated.
So calling for the repeal of the Combating of Immoral Practices Act is not a sensible way forward. If that statute were to be repealed, at least some of it would need to be replaced with more well-crafted and gender-neutral protections against various sexual abuses.

1 Hendricks & Others v Attorney General, Namibia & Others 2002 NR 353 (HC). This case also struck down some
presumptions in the Act relating to brothels.
2 Fantasy Enterprises CC t/a Hustler The Shop v Minister of Home Affairs & Another; Nasilowski & Another v
Minister of Justice & Others 1998 NR 96 (HC)

This article was made possible by support from
the Hanns Seidel Foundation.