Page:NCGLE v Minister of Justice.djvu/73



Rh Before dealing with the appropriate order to be made, it is necessary to return to the matter mentioned in passing in paragraph 3 of this judgment, namely the difficulties that can arise because the 1996 Constitution does not provide for an obligatory referral when a common-law offence is declared to be constitutionally invalid by a High Court. The present case is an apt illustration. In a very formal sense, the High Court’s order regarding the constitutional invalidity of the common-law offence of sodomy is not before this Court. Yet it is impossible to consider the confirmation of the orders relating to the inclusion of sodomy in the relevant schedules to the CPA and the Security Officers Act apart from the order relating to the offence of sodomy itself. It would be constitutionally intolerable if an order by a High Court striking down the offence in its entirety had to be left standing while at the same time this Court confirmed the striking down of the offence, as included in the schedules referred to, but only to a limited extent. Fortunately, for the reasons already given, we are able in the particular circumstances of this case to consider the constitutional validity of the common-law offence of sodomy itself. Analogous problems arise in regard to the degrees of retrospectivity of the orders.

It is fortuitous that the same High Court in the same case dealt with the common-law offence and the statutory provisions incorporating the common-law offence. It need not have been so. The common-law offence could have been declared constitutionally

Rh