Marriage bill won’t pass constitutional test – law experts

Some of Namibia’s legal experts say the marriage amendment bill recently tabled by home affairs minister Albert Kawana will not stand a constitutional test.

The minister of home affairs, immigration, safety and security last week tabled an amendment bill to replace the Marriage Act 25 of 1961, which is currently in force.

This comes after the Supreme Court last year ruled that the Namibian government must recognise same-sex marriages legally concluded outside the country.

The criminalisation of sexual acts between men in Namibia was declared unconstitutional and invalid by the High Court in a landmark judgement last month.

The marriage amendment bill clearly stipulates that spouses may only be from the opposite sex.

Lawyer Carli Schickerling, who has represented same-sex couples in litigation in Namibian courts, says the bill would have to be in line with article 10 and 22 of the Constitution.

Article 10 deals with equality and freedom from discrimination, and article 22 is about limitations to fundamental rights and freedoms.
Schickerling says she believes certain sections of the bill would be declared unconstitutional.

“And the courts must sometimes step in to protect the minorities against the majorities, because otherwise the majority would always be in a situation where they are going to discriminate against minorities,” she says.

Schickerling says it’s an election year, meaning some parties are saying what they think voters need to hear.

“But this is a free country, democracy reigns, and all people should enjoy the protection of our Constitution, not just those who feel that they are religiously superior to others,” she says.

Another lawyer, Nafimane Halweendo, says the courts are constitutionally bound to interpret Namibia’s body of law.

He says the Supreme Court judgement held that Namibia’s Constitution cannot be interpreted to remove the dignity of people based on their sexual orientation or the fact that they are in same-sex marriages.

“So, the bill would effectively mean that marriage in Namibia should only take place between people of the opposite sex.”

Halweendo says the Supreme Court said it is high time that the right to dignity is also afforded to people in homosexual relationships.

“In fact, the Supreme Court says it’s undignifying to treat people in same-sex relationships or same-sex marriages differently. “So, that would be the crux of the matter to say: You now introduce a bill against the tenets of what the highest court has said on the issue of dignity,” he says.

He says parliamentarians proposing a law that touches on something reflected in a judgement have a duty to study the Supreme Court’s judgement.

“. . . and make sure whatever laws parliamentarians are proposing are at the very least in line with whatever was mentioned in a judgement.

“Because judgments can simply not be ignored,” Halweendo says.

He, however, says lawmakers cannot ignore the wishes of their constituencies.

“And if there are people in Namibia who are of the view that same-sex marriages should not be allowed . . . parliamentarians, members of the executive . . . they are duty-bound by their mandate, constitutional mandate, to go and present those laws in parliament,” he says.

SECULAR STATE

Lawyer Uno Katjipuka-Sibolile says Namibia is a secular state, meaning there is separation between the state and the church.

One of the reasons behind the government’s push for the bill, Kawana explained this week, was to protect the values, cultural norms and morals of the country.

“This means the legislature cannot rely on or import religious views and values into the legislative process, because that would amount to imposing one group’s, or even individual’s, religious beliefs onto the general public, which in and of itself would violate our Constitution,” Katjipuka-Sibolile says.

She says Namibia’s constitutional values of dignity, equality and non-discrimination are not overridden by Kawana’s professed Christian values.

She says the legislature as well as the executive should be careful not to approve of values, traditions and norms which are not consistent with the values reflected in the Constitution.

“It is not for Kawana and fellow Christians to use their beliefs to deny Namibians their humanity, dignity or fundamental rights and constitutional protections,” Katjipuka-Sibolile says.