John B Nakuta
By way of giving context, Namibia is plagued with endless historical social development challenges. The most prominent of these are poverty, unemployment, inequality and housing informality. This is the common message of both national and international data sources on Namibia.
For example, a 2022 World Bank report ranked Namibia as the third-most unequal society in the world. The report flags inequality of opportunity, wealth inequality and spatial inequality as the prime drivers of the inequality curse in the country. The 2019 Namibia National Human Development Report compiled by the UNDP, on its part, shows that 75.5% of salaried workers in the country on average receive a meagre monthly salary of N$1 353. These people are predominantly doing precarious jobs. Meaning menial, temporary, contract, flexible and poorly-paid jobs, as affirmed in the 2018 Labour Force Survey (LFS). Most of these workers are women and young persons, and reside in rural areas. Those not doing precarious jobs are
unemployed. The 2018 LFS shows that the pre-Covid-19 unemployment rates amongst young persons, women and in rural areas have reached a
larming proportions. Add to this list the humanitarian crisis of informal settlements, the unresolved ancestral land question, and the long-outstanding reparatory justice demand for the genocidal acts committed
against our fellow Nama and Ovaherero ancestors by the German imperial regime. The list is endless. But the point has been made. Logically, one would have thought that these are the kind of issues that would keep the ruling elite awake at night. Not the private carnal affairs of individuals. How, for instance, are the sexual preferences of consenting adults an issue warranting an urgent central committee meeting?
Is that not a red herring?
Putting it differently, could that be a
strategy to deflect attention from the failure to address the real issues facing the country? Be that as it may, no amount of red herring or deflection strategy alters the fact that human rights are inalienable, universal and inherent to all persons, including those identifying as LGBTIQ+. Mother Theresa reminded us that human rights are not privileges conferred to us by governments; by extension neither by political parties, traditional leaders, parents or churches for that matter. They are the birthrights of every human being by him/her/they belonging
to the human race.
It is, therefore, not possible to accept the contention that the 1977 marriage policy of the Swapo Party should be the benchmark for apportioning fundamental rights and freedoms to people. Such thinking, respectfully, is grossly misplaced, and a legal misnomer. It exaggerates the importance of the policies of the Swapo Party in our country’s legal architecture and hierarchy. Moreso, the party’s marriage
policy appears oblivious to the fact that the concept of family evolved, as pointed out by the respective UN Treaty bodies, including the African Commission on Human and Peoples’ Rights. All these human rights bodies consistently stress that family must be understood in a wide and broad sense. The Namibian Constitution is the supreme and paramount law of the land. It alone confers fundamental rights and freedoms. Its shortcomings in this regard are generously mitigated by Article 144. This article automatically incorporates international agreements/treaties binding on Namibia into our legal order. Through this article, the human rights landscape in Namibia is exponentially expanded.
Furthermore, the rights in the Constitution ought to be interpreted expansively, and not restrictively as suggested by certain political parties, churches, moralists and others. At this juncture, it is equally important to stress that the fundamental rights conferred by the Constitution cannot be bartered away. This presupposes that the issue of the constitutionality of the recognition of same-sex marriages can, therefore, not be referred to a referendum in which a majority view would prevail over the wishes of the minority. In our legal order, the power
of judicial review of all
legislation is vested in the courts. The cardinal reason behind this is to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the
weakest amongst us that all of us can be secure that our own rights will be protected.
This is the core message of the Supreme Court in the Digashu judgement. In fact, if the court were to defer this fundamental constitutional duty to public opinion, it would amount to an unlawful abdication of its judicial power,
and a miscarriage of justice of enormous proportions. It remains to be seen what purported executive and legislative steps the government will take to circumvent the now expansive/broad meaning accorded to the word spouse in the Immigration Control Act, as per the directive of the Swapo central committee. It is sufficient to stress though that any different, creative construction or legal interpretation of the word spouse will still have to be
Constitution-compliant. Specifically, there is the Article 22 limitation requirement that no law should be aimed at a particular individual or groups of individuals for it to qualify as a justifiable and reasonable limitation. In closing, all human beings are born free and equal in dignity and rights as eloquently proclaimed in Article 1 of the Universal Declaration of Human Rights. This most basically means that all individuals are equal as human beings under the inherent dignity of each human person. What makes this so difficult to comprehend and/or to accept?
*John B Nakuta is a social justice scholar. He is a life activist on justice, human rights, the rule of law and governance. This article is written in his personal capacity.