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Namibia’s proposed Amendment of the Marriage Act – An attack on the rule of law and the judiciary

By 20 July 2023September 19th, 2023Equality Rights, Equality Rights LGBTIQ+, Equality Rights News, Namibia8 min read

Namibia, Windhoek – 20 July 2023: On 11 July 2023, the National Assembly of Namibia passed a private member’s bill which redefines the term spouse and amends the Marriage Act. The bill was introduced with reference to Articles 81 and 45 of the Namibian Constitution to “contradict a decision of the Supreme Court of Namibia”. The bill states that it contradicts the Supreme Court’s decision of May 2023 in Digashu and Another v GRN and Others.

The bill proposes that no marriage between persons of the same sex shall be recognised as a valid marriage in Namibia and that anyone in a same-sex marriage will not be regarded as spouse for purposes of any law in Namibia. The Marriage Act amendment states that marriage “means a legal union entered into between persons of opposite sex”.

On 12 July 2023, the Civil Registration and Identification Bill was steamrolled through the National Assembly. The bill sought to emphasise that ‘spouse’ refers to “one half of a legal union between a genetically born man and a genetically born woman of the opposite sex”. The haphazard discussions on the Civil Registration Bill were not finalised in the National Assembly before the session closed.

This week, the Bill to amend the Marriage Act is being discussed by the National Council of Namibia. If the bill is confirmed by the National Council, it will be sent to the President for assent.

At the heart of these legislative responses to the Digashu judgement is undue anxiety about the impact of the Supreme Court’s judgement on potential future legal challenges, yet there is no guarantee that such litigation might even eventuate. The Supreme Court recognised the appellants as “spouses” as per section 2(1) of Namibia’s Immigration Act. A miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgender persons. The recognition of the appellants’ rights and the rights of the few people who find themselves in a similar position as foreign spouses does not in any way infringe on any person’s ability to exercise their own rights, choices and beliefs. Rushing legislation through parliament in contradiction of a Supreme Court judgement under the guise of moral panic is misleading people and deliberately misstating the ambit of the judgment of the Supreme Court for the purpose of short-sighted populist political gains.

The Supreme Court did not rule that same-sex marriages can be conducted in Namibia. Instead, the Supreme Court applied the common law principle that if a marriage is duly concluded in another country, it must be recognised in Namibia. The Court held that where the interpretation of legislation impairs the ability of spouses to honour their obligations to one another, that infringes their rights to dignity and equality. The Court further focused on the painful history of discrimination in Africa and the importance of the universal application of human rights to ensure such injustices do not recur.

The current debates before Parliament make a mockery of the rights provisions in the Constitution, risking the independence of the judiciary and the rule of law. Article 79 of the Constitution specifically assigns responsibility for interpreting the Constitution to the Supreme Court. Despite their duty to uphold the Constitution, some parliamentarians now suggest that religious arguments can override a careful constitutional analysis by a bench of the highest court in the country. Such arguments cannot and should not be sustained.

As explained by the Supreme Court, the purpose of the Constitution is to move away from the ways things were done under Apartheid, where religion was also used to justify abuse and segregation. Article 1 of the Constitution establishes Namibia as a sovereign, secular democratic State founded upon the principles of democracy, the rule of law and justice for all, and affirms the Constitution as the Supreme Law of the country. The universality of rights, as set out in the Constitution, is a prerequisite for a stable, peaceful and free society.

Whatever any person’s religious beliefs might be, it is important for citizens, the President and all parliamentarians to continuously affirm the power and duty of the courts to protect the rights of all persons at all costs. Failure to do so will erode the judiciary and our democracy. While the separation of powers doctrine grants the legislature the power to make laws, in a constitutional democracy, any decision-making process must follow principles and conditions set out in the Constitution. The suggested amendments violate and unjustifiably limit the determined scope and content of the right to equality and dignity set out by the Supreme Court. Limiting such rights through the backdoor of brash amendments to the Marriage Act is irreconcilable with the spirit and supremacy of the Constitution and the protection of dignity and equality in the Constitution of Namibia.

“After six years in the courts, it is disappointing and disheartening to see our efforts with the judiciary be reduced to nothing and to see the courts and the law be overlooked. Recently when I got back to Namibia from South Africa, I got a visitor’s visa stamped on my passport and was referred to the Ministry of Home Affairs to go sort it out with them; a direct and clear disregard of the recent Supreme Court ruling, which is in our favour. Those six years were not without suffering, both emotionally and financially, and I just feel like we are tired of the abuse. The Supreme Court should have been the clarity and closure we were all waiting for, but instead, we see justice being delayed and the Supreme Court ruling being undermined and disregarded. The lack of freedom we had and still have as a family is appalling.” – Daniel Digashu.

SALC calls on the Namibian lawmakers and the President not to pass these bills. Introducing laws that obviously contradict a constitutional interpretation of the fundamental human rights and freedoms under the Namibian Constitution constitutes a step backwards and paves the way for instability by undermining the supremacy of the Constitution. Passing the amendment into law established a dangerous precedent that constitutes a threat to all fundamental freedoms and rights protected under the Constitution.

Background Information

Article 81 of the Namibian Constitution states that:

A decision of the Supreme Court shall be binding on all other Courts of Namibia and all persons in Namibia unless it is reversed by the Supreme Court itself or is contradicted by an Act of Parliament lawfully enacted.

In this context, Parliament includes the National Assembly and the National Council. Any interpretation of Article 81 must be conducted against the Constitution in its entirety. On this basis, the interpretation of Article 81 cannot be considered in a vacuum or detached from fundamental freedoms and human rights set out in Chapter 3 of the Constitution and other relevant constitutional provisions.

The Supreme Court of Namibia, in the Digashu matter, stated that excluding a spouse of a same-sex marriage from the interpretation of the term “spouse” in the Immigration Act constitutes a violation of Article 8 (right to dignity) and Article 10 (right to equality) of the Namibian Constitution.

With respect to the legislature and its power to make laws, Article 63(1) of the Namibian Constitution defines the functions and powers of the National Assembly and states that:

The National Assembly, as the principal legislative authority in and over Namibia, shall have the power, subject to this Constitution, to make and repeal laws for the peace, order and good government of the country in the best interest of the people of Namibia.(Emphasis added)

 Article 63(2)(c) further states that:

The National Assembly shall further have the power and function, subject to this Constitution, to take such steps as it considers expedient to uphold and defend this Constitution and the laws of Namibia and to advance the objectives of the Namibian independence.(Emphasis added)

While both provisions refer to the power to make laws and decisions, both provisions state at the same time that the National Assembly’s power is subject to the Namibian Constitution. As set by the decision in Digashu, same-sex marriages are protected in terms of the Immigration Control Act under the right to dignity and equality. In this context, the Supreme Court states the following with respect to the interpretation of the Constitution and fundamental rights in light of public opinion in the Digashu matter:

Whilst public opinion expressed by the elected representatives in Parliament through legislation can be relevant in manifesting the views and aspirations of the Namibian people, the doctrine of the separation of powers upon which our Constitution is based means that it is ultimately for the court to determine the content and impact of constitutional values in fulfilling its constitutional mandate to protect fundamental rights entrenched in the Constitution.

Since the Constitution is the supreme law, no constitutional body, including the National Assembly or the National Council, is above the Constitution. It is not up to the legislature to determine the scope or application of fundamental rights in the Constitution. In addition, Article 131 of the Namibian Constitution further highlights the importance of the fundamental rights set out in Chapter 3 of the Constitution when it states that:

No repeal or amendment of any of the provisions of Chapter 3 hereof, in so far as such repeal or amendment diminishes or detracts from the fundamental rights and freedoms contained and defined in that Chapter, shall be permissible under this Constitution, and no such purported repeal or amendment shall be valid or have any force or effect.”

Against this backdrop, a constitutional interpretation of Article 81 of the Namibian Constitution suggests that any act or law that contradicts rights does not pass the constitutionality test.

For more information, contact SALC’s Anna Mmolai-Chalmers, at annam@salc.org.za, or Daniel Digashu, at danield@salc.org.za.

 Issued by the Southern Africa Litigation Centre.