Dr. Shirley Magazi
The recent and most controversial Supreme Court judgement of Digashu and Others v GRN and Others; Seiler-Lilles v GRN and Others, where the majority ruled that the word spouses should include same sexes, has set a new constitutional jurisprudence in Namibia that does not reflect the values, morals and aspirations of the Namibian people.
The court violated the principle of value judgement, which has been the basis of Namibia’s constitutional jurisprudence, by undermining the role of the values, opinions, morals and aspirations of the Namibian people in interpreting the Immigration and Control Act 7 of 1993.
Since independence, Namibia developed a jurisprudence based on value judgements and an epistemological paradigm rooted in the values and norms of the Namibian people.
This is the foundation upon which the Namibian judiciary promoted the rule of law and constitutionalism, and protected and advanced the fundamental rights of individuals.
Having adopted a value-oriented or purposive approach to the interpretation of the constitution since independence, the Supreme Court in the Ex Parte Attorney-General In re: corporal punishment case, authoritatively established that the courts should objectively articulate and identify the contemporary norms, aspirations and expectations of the Namibian people.
The Supreme Court essentially punished the Government of Namibia, represented by the Ministry of
Safety – and by extension the Namibian people – for administering the Immigration Act that mirrors the opinions and values of the Namibian people as prescribed in the Namibian constitution.
It is trite that constitutionalism primarily exists to discipline governments and protect society from possible abuse of power by governments.
This, however, does not mean that government should always be disciplined, particularly when government reasonably, correctly and fairly administers the law in alignment with the constitution that reflects the values and aspirations of the Namibian people.
In such cases, the role of the court is to ensure that its interpretation of statutes advances the expression and achievement of the ideals and aspirations of the nation, and that statutes express the articulation of the values bonding its people.
This is the purposive approach upon which the Namibian jurisprudence was founded, which unfortunately has been undermined by the recent erroneous Supreme Court judgement.
Furthermore, the recent judgement of the Supreme Court gravely diminishes the dictum that was upheld by the same in the Minister of Defence v Mwandingi case: “The constitution of a nation is not simply a statute which mechanically defines the structures of government and the relations between the government and the governed.
It is a mirror reflecting the national soul, the identification of the ideals and aspirations of a nation; the articulation of the values bonding its people, and disciplining its government.
The spirit and tenor of the constitution must, therefore, preside over and permeate the processes of judicial interpretation and judicial discretion.” Unfortunately, in an attempt to broadly, liberally and purposively interpret the Immigration Act, our Supreme Court weakened the very principle of value judgement and purposiveness upon which our jurisprudence is founded by subverting the values, opinions, morals and aspirations of the Namibian people.
It is because the voice of the Namibian people has been silenced in the judgement of the Supreme Court that the nation is outraged. If this error is not corrected, it sets a new judicial precedence in Namibia and introduces a new constitutional jurisprudence that outlaws the opinions, values, morals and aspirations of the Namibian people.
This is a very serious and consequential error that directly conflicts, violates and therefore undermines the Supreme Law of Namibia, the Namibian Constitution.
* Dr Shirley Magazi is the executive chairperson of the Christian Coalition of Churches in Namibia.