Life or Death For the Namibian Constitution

The private member’s bills currently before parliament are not about same-sex marriage. They are about the life or death of Namibia’s system of constitutional democracy.

In the Digashu case, the Supreme Court ruled it was a violation of the constitutional rights to equality and dignity to recognise opposite-sex, but not same-sex, marriages for immigration purposes.

This principle applies equally to any attempt to amend the Marriage Act or the meaning of the word “spouse” in the Immigration Control Act to subvert the Supreme Court’s ruling.  

The Constitution is Namibia’s Supreme Law, according to article 1(6).

It is the source of all other laws and so must take precedence over other laws which are subordinate to it.

It is the source of the powers of parliament, and indeed the basis for parliament’s very existence.

Under Article 79, the Supreme Court has the constitutional responsibility to interpret the Constitution.

And, as the highest court of appeal in Namibia, its decisions on the Constitution’s meaning take precedence over those of lower courts and government officials and, yes, even parliament.

Article 81 of the Constitution says a decision of the Supreme Court “shall be binding on all other courts of Namibia and all persons in Namibia unless it is reversed by the Supreme Court itself, or is contradicted by an act of parliament lawfully enacted”.

SEPARATION OF POWERS

What does lawfully enacted mean? It means “subject to the Constitution”, as article 63 on the powers and functions of the National Assembly states repeatedly.

It certainly does not mean parliament can simply “contradict” a ruling of the Supreme Court on a constitutional issue, as one of the bills would have it.

The Supreme Court’s role in respect of the Constitution is made even clearer by article 64.

If the president refers a bill to a competent court because its constitutionality is in doubt and the court rules that the disputed bill is in conflict with any provision of the Constitution, “the said bill shall be deemed to have lapsed and the president shall not be entitled to assent thereto”.
The bills before parliament contradict the essential point of the Supreme Court’s recent ruling.
If they are passed, they would subvert the separation of powers which is the essence of Namibia’s constitutional framework.
And where would that leave us?

PROTECTIONS

Ruling parties come and go, but the Constitution is a set of values that is supposed to persist for all time.

It is particularly important for the protection of minority rights, and for enabling individuals to assert their rights against government.

The church groups who are supporting these bills might some day want to invoke the constitutional right to practise any religion if this was threatened by some action of parliament.

Those who are speaking against same-sex marriage today might some day want to call upon the Constitution’s protection for freedom of speech and expression if they want to express a view that is not so popular with the ruling party.

If we throw out the ability to rely on constitutional rights now, it is at our peril.

If the Constitution has no meaning, will companies be happy to invest in Namibia?

If the current ruling party falls out of power some day, will it still be happy for a parliamentary majority to have complete control?

What if a future parliament decides to enact a law that discriminates against women?

These bills threaten the future of Namibia in fundamental ways.

BEDROCK PRINCIPLES

The purpose of the Constitution is to set forth the basic bedrock principles which will apply over and above the decisions of any government of the day.

That is the point of having three different branches of government with different roles.

The separation of power between the executive, the legislature and the judiciary prevents abuses of power.

Each branch has some independent functions, but the three different branches also monitor and limit each other.

This system helps to make sure that no one person or institution becomes too strong or controlling.

That is what provides the checks and balances that keep Namibian democracy safe for all time.

As the Supreme Court itself said in the case that has caused all the furore: “Whilst public opinion expressed by the elected representatives in parliament through legislation can be relevant in manifesting the views and aspirations of the Namibian people, the doctrine of the separation of powers upon which our Constitution is based means that it is ultimately for the court to determine the content and impact of constitutional values in fulfilling its constitutional mandate to protect fundamental rights entrenched in the Constitution. That is the very essence of constitutional adjudication which is at the core of our Constitution.”

BIGGER ISSUE

If the proposed bills are passed, they will almost certainly end up back in the Supreme Court when they are challenged on constitutional grounds – and the provisions that seek to contradict the Supreme Court ruling in the Digashu case will almost certainly be struck down – and then Namibia will be on a merry-go-round that could be the end of the system of government that has been the hallmark of the country for the last 33 years.

That would be a much bigger issue than what foreign marriages can be recognised in Namibia.

Is parliament really prepared to let this issue be the death knell of Namibia’s carefully balanced constitutional framework? Let us hope not.

• Dianne Hubbard was the coordinator of the Gender Research and Advocacy Project at the Legal Assistance Centre for 30 years and now works as a legal consultant.