Rudolf Gaiseb
LGBTQ+ advocates are worried by Parliament’s refusal to accept the recent Supreme Court ruling on the recognition of same-sex marriages in Namibia, a report has found.
This situation could lead to a damaging showdown between the Legislature and Judiciary, threatening separation of powers vested in each body.
Retired coordinator of the research and advocacy project at the Legal Assistance Centre in Windhoek, Dianne Hubbard, believes that if Parliament can override the court’s interpretation of the Namibian Constitution on how equality and dignity apply to the issues of same-sex marriage or the crime of sodomy, the same could happen in connection to any of the fundamental constitutional rights.
Her report, ‘Human Rights in Namibia: Current Issues in Gender and the Law’, launched recently in Windhoek by the Institute for Public Policy Research, elucidates a tussle between three government bodies: the one responsible for making laws, the other for interpreting them, and the other for putting laws into action.
Hubbard states this could affect the country’s stability and affect diplomacy.
“The conflict between Parliament and the courts has ramifications that go far beyond LGBTQ+ issues, threatening the separation of powers between the three branches of government. This division of functions amongst three different branches helps to prevent abuses of power. If Parliament can overrule the Supreme Court’s interpretation and application of the Constitution, this would put the basic structure of Namibia’s constitutional system into jeopardy. Article 81 of the Constitution says that a decision of the Supreme Court is binding unless it is reversed by the Supreme Court itself, or is contradicted by an Act of Parliament lawfully enacted,” she stated in the report.
The most recent Afrobarometer survey on tolerance toward homosexuality has placed Namibia amongst the African countries most tolerant of homosexuality, ranking third-most tolerant out of 34 countries surveyed in 2019/2021 and fifth-most tolerant out of the 37 African countries surveyed in 2021/2023.
Hubbard said the most recent Afrobarometer survey included more detailed and extensive questions on attitudes about homosexuality, as part of Namibia’s country-specific questions.
“While the answers do not indicate the level of tolerance one might hope for, the data indicate that roughly one-third of the Namibian population is neutral or accepting of various dimensions of homosexuality—not a majority, but not an insignificant proportion by any means,” she stated.
Cases
The report cites the Frank case (2001), which was a review of an unsuccessful application for permanent residence by a German citizen who was in a long-standing lesbian relationship with a Namibian citizen.
In essence, the German national was denied permanent residence in Namibia despite being in a committed relationship with a Namibian woman, living in Namibia for many years, and having a highly skilled job here.
In the affidavit, she claimed that the only reason her application was denied was because she is a lesbian woman in a homosexual relationship.
She, therefore, filed suit against the Namibia Immigration Selection Board (ISB), arguing that it had discriminated against her in denying her application.
The lower court found in favour of the respondent, and ordered the ISB to grant the respondent’s application.
On appeal, the Supreme Court reversed the decision, finding that the respondent had not proven discrimination and that the ISB had wide discretion to deny applications.
Regarding the fact that the first respondent is a lesbian, the appellant denied that this played any role in the decision taken by it.
“The first respondent’s sexual preference was considered to be a private matter, having no bearing on her application for a permanent residence permit,” it is stated in the 2001 affidavit. However, the Supreme Court judge explicitly stated: “I must emphasise in conclusion, nothing in this judgement justifies discrimination against homosexuals as individuals or deprives them of the protection of other provisions of the Namibian Constitution.”
Another court case has been brought against the Ministry of Home Affairs, Immigration, and Safety and Security in recent years by a gay couple comprising a Mexican citizen and a Namibian citizen.
The two men married in 2014 in South Africa, where same-sex marriage is legal, and had three children via surrogacy in South Africa since Namibia has no clear legal framework for surrogacy.
The significance of this case is the children’s right to Namibian citizenship.
The government’s position was that their right to Namibian citizenship required proof of a genetic link between the children and their Namibian citizen parent. The High Court disagreed, on the grounds that there is no reference in the Constitution to biology or genetics in respect of citizenship by descent.
The court also noted that no such requirement is applied to heterosexual parents who make use of surrogacy procedures in other countries, conceive children by assisted means, use fertility techniques using donor eggs or sperm, or adopt children in Namibia or abroad. “The High Court considered the best interests of the children, finding that it would be “grossly unfair” to deny children citizenship “because of the nature and circumstances of their birth or the sexual preference of their parents,” the report reads.
However, on appeal, the Supreme Court sidestepped the substantive issues, finding that the family had not satisfied the requirement that the birth of a child to a Namibian citizen outside “Namibia must be properly notified to Namibian authorities as a precondition for citizenship by descent—thus leaving the legal position on citizenship in these circumstances without a final resolution.” Specifically, the Constitution states that Parliament shall not make any law that abolishes or abridges the fundamental rights and freedoms conferred by the Constitution and that any law that does so is invalid (Art 25(1)). At the same event, in a statement, Society of Advocates of Namibia president Natasha Bassingthwaighte said there was a clash between Parliament and the Judiciary, undermining the founding constitutional principles of the separation of powers and the independence of the Judiciary.
“Every member of the legal profession takes an oath to defend and uphold the Constitution of Namibia as the supreme law. Every member of Parliament also takes an oath to uphold and defend the Constitution and laws of the land. We appeal to Parliament to take this oath seriously, even in difficult cases where the personal views of some members of Parliament do not accord with the decision of the courts on a constitutional issue,” Bassingthwaighte noted.