First of all, I want to make it categorically clear that the views in this article are not meant to offend anyone but are expressed purely to contribute to the academic and legal debate on the subject of same-sex marriage in Namibia.
The subject of same sex marriage has drawn and implicates deeply contested and controversial ideas in many societies, morally and on religious grounds in many countries including Namibia for some time now.
Nonetheless, I will confine myself to the legal aspect of this important subject matter in Namibia.
Human beings reason by means of concepts and definitions. The lawmakers also make laws by means of definitions.
Having stated that, it is however not my intention to give or define the definition of marriage in this article. I will leave that function to the lawmakers whom I suspect have already done so as it is evidenced by the Namibian Constitution and the current Namibian legislation on this matter. However, to amplify my points in this article, I will use the definition of marriage as it is provided for in the dictionary.
The Oxford dictionary defines marriage as “The legal union of a man and woman as husband and wife.” The same dictionary states that the word sex refers to a person’s biological status and is typically categorised as male and female.
In my opinion the central question around the issue is the legality of same sex marriage in Namibia and whether same sex marriage is a human right or a discrimination against the LGBT persons in terms of the Namibian Constitution and more so in terms of international human rights instruments to which Namibia is a state party.
If the answer to the above questions is affirmative, then probably the second question would be, are the laws of Namibia violating that right or discriminating against the other persons? I will deal with the issue of discrimination in terms of the Namibian Constitution later in the article.
Is same-sex marriage a human right?
To answer this question from the Namibian legal point of view, we need to look at Chapter 3 of the Namibian Constitution and Namibia’s international human rights obligations, such as its accession to the International Covenant on Civil and Political Rights (ICCPR), the African Charter on Human and Peoples Rights and other instruments.
The meaning of marriage in the context of Chapter 3 of the Namibian Constitution, was considered already in our courts in the following cases: The Chairperson of the Immigration Selection Board vs Erna Elizabeth Frank and Elizabeth Khaxas and in Myburgh vs Commercial Bank case.
In both of the above-mentioned cases, the court dealt with Article. 14 of the Namibian Constitution which contains the provision about family. It was assumed by the court that Article 14 only refers to marriages between men and women.
One of the Honourable Judges felt that it was necessary for the court to discuss Article 14 in detail even though it was not the primary issue that needed to be decided in those cases. The Honourable Judge was of the view that Article 14 clearly does not create a new type of family.
The Judge stated that “the protection under Article 14 was extended to the natural and fundamental group unit of society as known at the time as an institution of Namibian society.” Therefore, the homosexual relationship whether between men and men or women and women, clearly fall outside the scope of Article 14 of the Namibian Constitution.
I have already stated that the issues that were before courts in these two cases on which the courts decided were not on same-sex marriage. However, the same Honourable Judge in his attempt to clarify the issue of discrimination in relation to same-sex relationship decided to include the understanding and the meaning of acquisition of citizenship by marriage in the context of Article 4 (3) of the Namibian Constitution.
It is also not my intention to discuss the above cases in this article. However, it is important to share what one of the judges said on the issue of marriage in Namibia in terms of Article 4 (3) of the Namibian Constitution.
In the Frank case, the Honourable Judge said that, “As far as the Namibian Constitution itself is concerned, the marriages in terms of Article 4 (3) qualify a spouse of a citizen for citizenship, is clearly a marriage between a man and a woman, that is a heterosexual marriage, not a homosexual marriage or relationship.”
The Honourable Judge further stated that “the people of Namibia share basic values with all civilized countries and it is for that reason that it is useful and important to look at interpretations of other jurisdictions although the determining factor remains the values expressed by the Namibian people as reflected, inter alia, in its various institutions.”
In his respective views, he considered the Namibian parliament, courts, tribal authorities, common law, statute law and tribal law, political parties, news media, trade unions, established Namibian churches and other relevant community-based organizations to be regarded as institutions for that purposes. Public opinion was also mentioned as important as long as it is properly established to conduct opinion polls.
According to the newspaper reports, there are three different cases on same-sex marriage that are before our superior courts on legal recognition. This is very interesting development because it is possible that the court might find new grounds to contradict the Judge’s view in the Frank case and find that Article 14 of the Namibian Constitution can be interpreted to protect the right to homosexual marriage. (to be continued…)
*Alex Zambwe is an LLM final year student at the University of South Africa. He writes in his private capacity.
2019-09-13 08:26:49 9 days ago