Page:NCGLE v Minister of Justice.djvu/90



Rh in the absence of the evidentiary provision in question might no longer be available.

In the present case the situation is different. From the perspective of adult gay men who have been convicted of sodomy where this occurred consensually and in private, (to which I shall for convenience refer as “consensual sodomy”) it seems manifestly and grossly unjust and inequitable that such convictions should not be capable of being set aside. People have been convicted of an offence which ceased to exist when the 1996 Constitution came into effect. In fact, because of the principle of objective constitutional invalidity, the offence ceased to exist when the interim Constitution came into force on 27 April 1994, because there is no doubt that this Court, for all the reasons set forth in this judgment, would have declared the common-law offence of sodomy to be inconsistent with at least the provisions of section 8 of the interim Constitution, had a constitutional challenge been brought under it. Competent courts have wide powers under section 172(1)(b) to make orders that are “just and equitable”. The chance fact that a constitutional challenge against the offence of sodomy was not brought under the interim Constitution should not deter us, in the particular circumstances of this case, from giving full retrospective effect, to 27 April 1994, to an order which justice and equity clearly require.

Rh