Dr Pilisano Masake
The matters of Digashu and Seiler-Lilles has a protracted litigation history that is not short of an indictment on article 12 of the Namibian Constitution’s trial within reasonable time principle. The Supreme Court is justified in putting an end to this indictment that seemed pervasive and entrenched in Namibia.
The Supreme Court decision is construed as a relief for the minority. However, will the relief last or its pro tem? Two contrasting sides of humanity on this decision: the minority are hopeful that the decision survives, while fury rages from the majority who want the decision to be delisted.
Critical thoughts on this topical decision are inevitably contested on all platforms, not only domestically. The question is: what then? The quadruple approach to address this question is unpacked below:
Accept and endure
The binding nature of the decision of the Supreme Court includes that it is final, must be obeyed and enforced accordingly. The enraged majority and relieved minority should form a consortium of a collective. The collective is summoned, in the spirit of this decision, to endure as a symbol of the collective’s application of the principle of equality before the law. This is no small feat, given the context where the majority are less tolerant to the practice of homo sex. If the clarion call for endurance is far-fetched, what is next?
Dialectical self-review mechanism
The finale effect of the decision of the Supreme Court may appear to be clear and cast in stone. However, it is not. Rather, dialectically viewed from a pidgin construct form of legal interpretation: there are other contending alternatives that potentially exclude ratchetting the parliamentary referenda agenda. Article 81 of the Constitution provides for a dialectical reversal approach, and the hierarchy of reversal may be structured in a predetermined manner. First, self-reversal, and second, reversal through parliamentary referenda. Reversal by the Supreme Court itself – what does this entail? The proposal is that the self-reversal mechanism should not be limited to a predicated or proxy events. There is no need to wait until a similar situation ensues in future. Rather, a petition may be initiated against the Supreme Court decision through a self-review mechanism. In this instance, the self-review mechanism may include the Supreme Court’s authority to revisit the Digashu/Seiler-Lilles decision, either at its own instance or that of a third party. The general petition requirements may apply, such as detectable error in law, procedure, or facts. The attorney general or interested party needs to prove the claimed error.
The patent errors may include transposition of ratio decidendi from a court of lessor authority; reliance on common law to the exclusion of domestic legislations when establishing what constitutes marriage or spouse. It is interesting to note that lex loci celebrationis is formalistic (regulates the ceremonies of marriage) and is not the ultimate determinant for the validity and recognition of marriages that are concluded in foreign states. The substantive recognition resides in the lex loci domicilii.
Therefore, the proposal is that the recognition of same sex marriages contracted outside Namibia should be measured against or is subject to the public policy of the lex loci domicilii (Namibia). Public policy may include but not limited to mis-generation, fraud, bigamy, non-deprived consent, and evasion of domestic laws. The test may include – did the parties elope and to have their marriages solemnized in foreign countries with intention to evade the Namibian laws? If it is found in affirmative – then such a marriage, legally, should not be recognised.
To effectuate this proposal – the attorney general may then petition the Supreme Court and pray for interpretation and the meaning of the text “reversed by Supreme Court itself”. If the Supreme Court’s self-reversal interpretation is found to be consistent to the herewith proposed interpretation: then the attorney general may proceed to petition the Supreme Court to implement the self-reversal mechanism to address the identified errors. This is a rare legal innovation that is close to a case of first impression in Namibia. However, the Supreme Court is well equipped to handle such a situation, since it has the authority to set its own direction, procedures, and processes.
Constitutional Court on the horizon
The Digashu/Lilles Supreme Court decision provoked critical thinking at all levels. This includes thoughts about whether there should be a Constitutional Court. Potentially, this could be an option that Parliament may consider. There are indicators for this proposition. Currently, the Supreme Court shoulders as court of first instance, review, appeal, and including presiding over constitutional questions. This is an extraordinary arrangement that has been executed seamlessly. However, there are legacies that need to be trimmed: judges of the Supreme Courts should be steered separately from those of High Court. There should be separation of roles to avoid cross pollination. There is another structural issue, the practice of a “full bench”. The concept of full bench should be redefined when dealing with constitutional matters. A full bench, in number, for constitutional matters should be different to the number on non-constitutional matters. If the jurisdiction over constitutional matters is to continue to reside under the Supreme Court, then the full bench number theory advocates for elasticity. At least an average of eight judges should constitute a quorum on a constitutional matter. This is consistent with other, equally, progressive jurisdictions. The establishment of a Constitutional Court has the potential to increase the ventilation of issues.
Parliamentary referenda
Parliamentary referendum against Digashu/Lilles decision is an act of extremism that dehumanizes the dignity of the court, derails public confidence in the entire justice system and destructive effort against the well-established judiciary system of a highly ranked democracy in Africa and world at large. The Namibian democracy is celebrated worldwide, and it is worth protecting at all costs. Therefore, parliamentary referenda reside as the last card that government should pull – optimistically, never to be pulled at all. However, though discredited, parliamentary referendum is a backdoor option that may be available. The question is: what is the motivation to invoke a contradiction through a legislation? Would the conduct of the legislature or the provisions of the contradicting legislation be constitutional? This is difficult to manoeuvre. This is because the motive may be, perceptively, to potentially perpetuate unjustified discrimination against the minority. There is a tall muster that needs to be passed. The other issue is that when a contradicting legislation is passed: it may be subject to constitutional challenge/review by the Supreme Court at the instance of the affected minority. In this manner, parliamentary referenda inflame a vicious and recurring jurisprudential bubble that may undermine the cherished rule of law, independence of judiciary, and democracy in Namibia.
A critical question is: what shall the attorney general do next?
*Dr Pilisano Masake, Associate Dean and head of the School of Human Sciences and Education, NUST. A Postdoc fellow of the Alexander von Humboldt Foundation, Humboldt University, Federal Republic of Germany.