Dr Shirley Magazi

In recent months, since the Supreme Court ruling in the Digashu case, Namibia has witnessed expressions of mixed emotions and opinions with reference to the Supreme Court ruling that the term ‘spouse’ in Section 2(1)(c) of the Immigration Control Act 7 of 1993 is to be interpreted to include same-sex spouses who are lawfully married in another country. 

The majority of these views and opinions enunciated utter dismay and disgust at the ruling, calling for the Supreme Court to reverse its decision.  It is clear that the majority of the Namibian people still uphold their cultural and religious values and norms, although these values and norms are under threat by, amongst others, the comprehensive sexual education content taught to our children in public schools.  The Supreme Court ruling, which has led to a countrywide debate, has brought to the fore our fundamental convictions as a Namibian people. This ruling has given us an opportunity to have an honest reflection of the identity and ethos of our nation as guided by the Namibian Constitution, the supreme law of our land and Vision 2030, the overall guiding and strategic development framework for our Nation. Vision 2030, Chapter 3, states that:  “Although Namibia remains a secular society, Christianity is the most popular religion, which holds promise for moral upbringing of our children and shapes the moral basis of our interpersonal dynamics, harmony and peaceful co-existence. Above all, the fear of God guides decision-making in Namibia and provides the driving force for the maintenance of a just and morally upright society.”  The democratic process of law-making In ensuring that the statutory laws of Namibia remain true to the ethos and identity of the Namibian people as prescribed in the Namibian Constitution, Namibia employs representative and participatory democracy in law-making. Through participatory democracy, the sovereigns of the nation exercise their power through free and fair elections by voting into power the President of their choice and political parties to represent them in parliament.  Further to this, the Namibian Constitution makes provision for participatory democracy through referenda and public hearings to decide on matters of national concern.  Representative democracy, which is the most dominant form of democracy between elections, is exercised through the members of the National Assembly as the representatives of all the people in Namibia, guided by the objectives of the Namibian Constitution, public interest and by their conscience.    The two bills that were recently passed by parliament that prohibit same-sex marriage in Namibia and clarify the term spouse in the Marriage Act are a perfect example of the principle of representative democracy upon which the Namibian democracy is founded. As underscored in the minority judgement in the Digashu case by Mainga J:

“Parliament cannot keep quiet for too long on the issue – it will have to regulate the issue in one way or another. The claim to same-sex relationships is now here and Parliament, which is best placed to assess and respond to that need should arise and act in terms of its Constitutional mandate.” Will the President assent to the two bills? According to the Namibian Constitution, every bill passed by Parliament requires the assent of the President to be signified by the signing of the bill in order to acquire the status of an Act of Parliament. As the nation waits in anticipation for the decision of the President, the most critical aspect to consider is the constitutionality of the two bills. The Constitution makes provision for the President to withhold his assent if he is of the opinion that a bill is in conflict with the provisions of the Constitution.  Are the two bills in conflict with the Namibian Constitution? The Namibian Constitution prescribes that no law in Namibia shall abolish or abridge the fundamental rights and freedoms conferred by Chapter 3 of the Constitution. Any such law or action in contravention thereof shall to the extent of the contravention be invalid. Does the prohibition of same-sex relationships as marriages abolish or abridge any right or freedom conferred in Chapter 3 of the Namibian Constitution?

Article 21 (2) of the Namibian Constitution stipulates that any fundamental freedoms shall be “exercised subject to the law of Namibia, in so far as such law imposes reasonable restrictions on the exercise of the rights and freedom…which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of Namibia, national security, public order, decency or morality…”

The two bills passed by Parliament give effect to Article 21 (2), within the context of the definition of marriage in Namibia. This approach aligns to the principle of the rule of law upon which our Constitution is founded, and it is by no means an undermining of the Supreme Court, nor does it infringe on the independence of the Judiciary.  Further, the two bills do not violate any grounds for discrimination as conferred in Article 10 (2) since sexual orientation is not a provisional ground for discrimination. In fact, the two bills further seek to protect persons currently in same-sex relationships from inhuman, unnatural and degrading treatment to protect their right to human dignity as conferred in Article 8(2)(b).

Most importantly, the two bills advance the spirit of the Namibian Constitution by protecting the family, which is the natural and fundamental unit of society, for the sake of our children, and to safeguard future generations, in line with Articles 13 and 14 of the Namibian Constitution. These bills further protect the sovereignty and integrity of the Namibian Government, People and Nation.  Given the above, and that the two bills were passed by Parliament with more than a two-thirds majority, the President would be constitutionally obliged to assent to the two bills, so they become law.

* Dr Shirley Magazi is the executive chairperson of the  Christian Coalition of Churches Namia.