Aletta Shikololo
Lahja Nashuuta
President Nangolo Mbumba has signed into law a new Marriage Act, which amongst others prohibits same-sex marriages in Namibia.
The new legislation also prohibits the recognition of same-sex marriages, including those legally performed in other countries. The legislation defines marriage strictly as a union between a man and a woman, excluding same-sex couples from legal recognition under both civil and customary laws. The issue of same-sex marriages has been topical in the country and within the legislative chambers.
In July 2023, Swapo member of parliament Jerry Ekandjo tabled Bills in the National Assembly which sought, amongst others, to criminalise the propagation, promotion and solemnisation of same-sex marriages, as well as to redefine the term spouse.
Last year, the High Court overturned the country’s colonial-era “sodomy” and “unnatural offences” laws, which criminalised same-sex sexual conduct between consenting adults.
Antagonists of the ruling primarily hinge their arguments on high moral grounds, while its proponents are using the human rights’ card as a point of entry.
The Bills were then passed by both the National Assembly and the National Council by more than a two-thirds majority, without a single objection nor a single abstention.
The new law introduces a raft of changes to the public notification process for intended marriages.
The Marriage Act, 2024 (Act No. 14 of 2024) states that couples planning to marry must now adhere to more stringent measures, aimed at ensuring public awareness and preventing fraudulent unions.
Notices
The newly-enacted law is a departure from the previous Marriage Act, which required only a physical notice at a local magistrate’s office or church where the marriage would take place.
In contrast, the new provision mandates that a public notice of the intended marriage must be displayed both online and at prescribed physical locations, or through other platforms designated by the minister.
Under the new law, the notice must include critical details such as the full names and birth dates of the intending spouses, the date and place of the intended marriage, and contact details for lodging objections.
When the Bill was just at Cabinet level, the deputy minister of home affairs at that time Daniel Kashikola said the old Act lacked sufficient visibility, and opened loopholes for unauthorised unions.
In an interview with New Era at that time, he said: “Someone will agree to get married and they will be paid – maybe N$2 000 per month. This mainly happens when one party is trying to make a living – and when one day that person wants to genuinely get married, they will be stranded because according to our records, that person is already married,” he observed.
Kashikola said grievances had also arisen, particularly amongst women who had been promised marriage, only to later discover that their partners are already married to other people.
Objection
The new legislation mandates the public notice to be displayed or otherwise made known for the prescribed period, which may not be less than 21 days from the date of its initial display or announcement.
“This is to allow the public ample time to lodge any objections,” it says.
Intending spouses may also apply for a waiver of the minimum notification period or public notice requirements under special circumstances, and the registrar general is required to review waiver applications within five days and provide a decision, based on urgency and supporting evidence.
Failure to comply with the objection process could result in “a fine not exceeding N$10 000, or imprisonment for a period not exceeding two years, or to both such fine and such imprisonment.”
The Act furthermore requires a pre-marriage confirmation before a wedding can take place which is valid for 90 days, and can be renewed only once for another 90 days.
A marriage can thus not happen if the confirmation had expired.
Child marriage
The new law prohibits marriage for individuals under the age of 18, and introduces stricter consent requirements for those under 21.
It says the registrar general or a registrar may not issue a pre-marriage confirmation in respect of a marriage between persons, one of whom or both are under the age of 18.
Furthermore, people aged 18 to 20 require written consent from “one or both parents,” a legal guardian, or an authorised person.
If consent cannot be obtained or is unreasonably refused, the law provides that a children’s commissioner may grant consent under specific conditions, such as when parents are deceased, missing or unable to provide consent due to medical reasons.
Reactions
Reacting to the new piece of legislation, human rights’ lawyers and activists described the development as a setback, demanding its retraction.
“By denying LGBTQI+ individuals the right to marry, the Act institutionalises discrimination, undermines their family rights, and perpetuates stigma and exclusion,” said activist Linda Baumann.
She said the law contradicts global progress and the principles of equality enshrined in Namibia’s Constitution.
“Such measures not only harm individuals, but hinder the advancement of an inclusive society,” Baumann said, before urging civil society to respond with robust advocacy, strategic litigation and public education.
Meanwhile, human rights’ lawyer and social justice scholar John Nakuta said the Marriage Act must be challenged.
“We need to remember that Article 14 of the Namibian Constitution, which is the supreme law of our land, endows men and women of full age, in other word, mature men and women, with the right to marry and a right to find a family.
The new Marriage Act now officially restricts the right to marry and the right to find a family to only heterosexual couples,” he asserted.
Nakuta continued: “In fact, the parliamentarians and the law in this case even went to the extent of saying that even if a same-sex marriage was lawfully contracted in another country, that same-sex marriage will now also not be recognised in Namibia in terms of the new Marriage Act. Very worryingly, that provision overrides the Supreme Court’s ruling of last year as it relates to the couples married in South Africa and in Germany, whose same-sex marriages are legally recognised.”
It is his fervent position that everyone has the right to privacy, and to get married to a person of their choosing.
“I can associate with whoever I want to associate with. [Whether] a person of my same sex; it is my right to choose, and no one can decide.
The freedom of choice, and so forth, and one can go on, but most importantly, it goes to the very crux of human dignity, not to allow people to be who they are and want to be,” he emphasised.
Sharing similar sentiments was Legal Assistance Centre director Toni Hancox.
“This law is a direct violation of human rights in all sectors. Absolutely, the rights to equality, dignity and family are all affected”.
Two genders
On Monday, new US president Donald Trump issued executive orders shortly after he was sworn in to change the US government’s policies on gender and diversity, following through on promises he made on the campaign trail.
He rolled back orders from the Joe Biden administration that the Trump White House called “unpopular, illegal and radical practices within every agency and office of the federal government”.
Two of the orders he revoked included a Biden directive aimed at preventing discrimination based on gender identity or sexual orientation.
Trump also signed an order designating two genders only – male and female – and declaring that they cannot be changed.