• August 10th, 2020

The question of same-sex marriage in Namibia (Part 2)

The International Covenant on Civil and Political Rights (ICCPR) is one of three documents that make up the International Bill of Rights, together with the Universal Declaration on Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The principle of equality under the ICCPR was considered by the Human Rights Committee under Article 23 of the Covenant, which provides that:

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State,
The right of men and women of marriageable age to marry and to found a family shall be recognised.

In Joslin v. New Zealand (2002), two lesbian couples challenged the New Zealand’s Marriage Act that it was discriminating against them. The UN Human Rights Committee was confronted with the question of whether same-sex marriage is recognized in terms of the International Covenant on Civil and Political Rights. The Committee replied in the negative. The Committee held that the Covenant recognized marriage as ‘only the union between a man and a woman wishing to marry each other’. The Committee reasoned that as Article 23 exclusively governed questions of marriage and the provision’s language was gendered (the right of ‘men and women’), the Covenant provided no space for a broader right to marriage equality. (Communication No. 902/1999, 75th sess, UN Doc CCPR/C/75/D/902/1999/;17 July 2002) 
It should be noted that Article 14 of the Namibian Constitution is also similar to Article 16 of the United Nations Universal Declaration of Human Rights, which is the foundation on which the Namibian Constitution was based by the drafters from different political parties on the advice of the western powers in terms of the 1982 Principles.  

In addition, the African Charter on Human and Peoples’ Rights which was adopted by the African Heads of State and Government in Nairobi, Kenya, in 1981 and which Namibia is a State party, provides in Article 17.3 that: “the promotion and protection of morals and traditional values recognized by the community shall be the duty of the State.” Article 18 of the Charter provides that the family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and morals. Again, it should be noted that the wording in 18.1 of the African Charter is almost identical to the words used in Article 14.3 of the Namibian Constitution.

Both the African Charter and the ICCPR oblige State parties to accord the widest possible protection and assistance to the family, which is the natural and fundamental group unit of society. In other words, it is the duty of the State to assist the family, which is the custodian of morals and traditional values recognized by the community. 

The Human Rights Committee has not considered the application of the International Covenant on Civil and Political Rights (ICCPR) to same-sex marriage since providing their views in the Joslin case in 2002, the two lesbian couples who challenged the New Zealand’s Marriage Act. It is true that the pace of reform globally has been increasing, with numerous countries now allowing same-sex couples to marry, and in many cases in response to court decisions in those countries. This development has led some commentators and legal expert to suggest that at some time in the future, the Human Rights Committee will depart from the views it expressed in 2002 and adopt an interpretation of the ICCPR which embraces a right to marry a person of the same sex. In my respective views, that would be a revolutionary interpretation of Article 23 of ICCPR and not necessarily the legal understanding or the meaning of the article, because the ordinary meaning of a word remains the same regardless of time period, just like the truth will remain the truth, it cannot change because of the time period.

Namibia, like many other member States acceded to the ICCPR based on the meaning and understanding of its original language in the text of the Covenant. Any new interpretation of the new meaning of the words, the Committee should propose a new Optional Protocol on LGBT and invite the member States who are willing and comfortable with the new Protocol to sign and ratify it.

The European Court of Human Rights 
Article 12 of the European Convention on Human Rights replicates many provisions of the ICCPR on the subject matter. The situation was made even clear by the European court on the issue of same sex marriage whether it is a human right in terms of Article 12 of the EU Convention on Human Rights.
The said Article provides that: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”

In 2016, the European Court of Human Rights delivered its decision on the case of Chapin and Charpentier v. France (n°40183/07). In this case, the full bench of the European Court of Human Rights unanimously recalled that the European Convention on Human Rights does not include the right to marriage for homosexual couples, neither under the right to respect for private and family life (Article. 8) nor the right to marry and to found a family (Article. 12), making it clear that homosexual partnerships do not in fact equal marriage between a man and a woman.

In the case of Schalk and Kopf v Austria (ECHR, App 30141/04; 24 June 2010) the European Court ruled that the Convention did not require member States to introduce a system of same-sex marriage. The court also referred to the use of the phrase “men and women” as supporting the traditional view of marriage, and also said that (at the time of its decision) there was no “consensus” among European nations as to whether same-sex marriage should be recognised. 

In conclusion, the Court further ruled that Article 12 of the EU Convention on Human Rights does not impose an obligation on the member States to grant a same-sex couple such as the applicants access to marriage.

Is it a discrimination?
The Namibian Constitution makes a distinction between the fundamental rights contained in Articles 6 to 20 and the freedoms (or rights to freedoms) enumerated in Article 21(1). With regard to the aforesaid freedoms there is a general qualification contained in sub-article (2) of Article 21 which provides that the freedoms must be exercised subject to the laws of Namibia, but places limitations on the laws to which the freedoms are subject. Therefore, if same sex marriage is regarded by other people in our communities as their freedoms and not a human right, then they should exercise it within the four corners of the laws of Namibia.

In 2016, Namibia responded to the Human Rights Committee’s previous Concluding Observations (CCPR/CO/81/NAM, para. 22), on the protection against discrimination for LGBT persons. The information in the paragraph below was Namibia’s response to Committee before the Committee considered Namibia’s ICCPR 2nd periodic report in Geneva, Switzerland:

“Namibia have noted the Committee’s previous concluding observations and other similar calls as well as the statements which suggests that Namibia has become notorious in its intransigence in accepting homosexuals as equal partners in a just society .Unfortunately, official attitudes do not seem to match the recent public opinion on this issue.”

In 2013, the Office of the Ombudsman published the results of a national survey of 1280 households about human right issues. One of the topics covered in this survey was attitudes about LGBT rights. When asked if people with “a different sexual orientation” have equal rights in Namibia, 73, 2% of the respondents said yes.

Though the value of public opinion will differ from case to case, from fundamental right to fundamental right and from issue to issue, in my view, in some cases public opinion should receive very little weight, in other cases it should receive considerable weight. 

It is also worth mentioning that at international level, in 2013, the Pew Research Centre surveyed individuals in 39 countries about their acceptance of homosexuality and found a global divide on this question with broad acceptance in North America, the European Union and much of Latin America, which contrasted with widespread rejection in predominantly Muslim nations and in Africa.

Now, Article 10 of Namibian Constitution provides for equality and freedom from discrimination:
(1) All persons shall be equal before the law.
(2) No persons may be discriminated against on the grounds of sex, race, colour, ethnic origin, religion, creed or social or economic status.

It is my strong suspicion that homosexual relationships must have been known to the representatives of the Namibian founding fathers and mothers and their legal representatives when they drafted the Namibian Constitution. Surprisingly, sexual orientation was excluded as one of the grounds for non-discrimination under Article 10 (2). Which means that it was never contemplated or intended by the founding fathers and mothers of the Namibian Constitution to place a homosexual relationship on an equal basis with a heterosexual marital relationship.

Therefore, in terms of Article 14 of the Namibian Constitution, it is very clear that we only have the unique union of one man and one woman as the founding cell for society, unlike the legal partnership which is being proposed and formed for the pleasure of adults by the LGBT people without any societal significance. However, that does not mean that Government does look down or reject LGBT people because of their sexual preferences. 

In conclusion, the family institution in terms of the African Charter, the United Nations Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Namibian Constitution, envisages a formal relationship between male and female, where sexual intercourse between them in the family context is the method to procreate offspring and thus ensure the perpetuation and survival of the nation and the human race.

Legal challenges 
Many constitutional legal experts argue that the list of grounds which prohibit discrimination as numerated under Article 10 (2) is not ending with those grounds. They claim that many other grounds can be added. Now, the question is should our courts  be egalizing same-sex “marriage,” what legal grounds would the court use to stop others from entering into incestuous marriages (father and stepdaughter or mother and stepson, etc.), because they will also claim that it is their human right to marry whomever they marry.

Furthermore, legalizing “same-sex marriage” would mean that the State will have to get involved to enforce these marriages, and order public schools to teach its acceptability to children, and punish any State employee and institutions that will expresses disapproval of these marriages, otherwise the LGBT people will be exposed to constant harassments as the case in many other countries.

* Alex Zambwe is an LLM final year student at the University of South Africa. He writes in his private capacity.

Staff Reporter
2019-09-20 08:13:30 | 10 months ago

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