‘MPs cannot overrule same-sex marriage recognition’

Legal Assistance Centre (LAC) director Toni Hancox says Namibia’s parliament does not have the power to overrule the Supreme Court on the recognition of same-sex marriages that have been validly concluded abroad.

This comes amid opposition to last week’s ruling in which the country’s top court directs the Namibian government to recognise these marriages and that same-sex couples are, in terms of the Constitution, entitled to equality under the law.

Hancox said yesterday: “If the Supreme Court interprets a law in a way that parliament does not like, then parliament can change that law, but parliament cannot overrule the Supreme Court when it has ruled that a particular provision or law is unconstitutional.

“Like in this case, the right to dignity and to equality overruled the immigration laws. So, parliament has to act within the boundaries of the Constitution and the Supreme Court interprets that Constitution. These rights are in chapter three [of the Constitution] and are inviolable.”

The Supreme Court found, in a judgement written by chief justice Peter Shivute and appeal judge Dave Smuts, that the term “spouse” in the Immigration Control Act includes same-sex spouses lawfully married in another country.

The effect of this finding is that non-Namibians in same-sex marriages with Namibian citizens enjoy the same residence rights in Namibia that the Immigration Control Act accords to non-citizens in heterosexual marriages with Namibian citizens.

The court’s decision was given on appeals lodged by Namibian citizen Johann Potgieter and his South African husband, Daniel Digashu, and German citizen Anita Seiler-Lilles, who is in a same-sex marriage with her Namibian spouse, Anette Seiler, against a judgement that three judges of the High Court delivered in January last year.

Reacting to the court’s decision, former member of parliament Mike Kavekotora said although Namibia is a democratic country and adheres to the power given by the judiciary and as enshrined in the Constitution, he believes the decision is contrary to culture.

“The public outcry is genuine because it’s contrary to our culture and preaching of the Bible. I would assume a call for a referendum is a genuine one,” he said.

Kavekotora said the parliament cannot nullify what the court has ruled but can subsequently sit and start interrogating the rules where there is no amendment.

“We should review some of these laws that are contrary to our cultures. Not everything we have to follow is modern. We are a sovereign country and we should not allow people to choose our way of living.

“It’s not even about being homophobic, it’s about countries being threatened if they are not complying with the lesbian, gay, bisexual, transgender, queer/questioning, intersex and other (LGBTQI+) community and it’s not right,” he said.

South West Africa National Union (Swanu) president Evilastus Kaaronda said a referendum may not prove to be helpful as there are some fundamental rights that are protected by the Constitution regardless of whether the majority of citizens agree with such rights or not.

“The foundational principles of our Constitution will not permit such a vote to stand because of the manner in which it will infringe on the rights of citizens or some segments of the citizenry. As for whether the Supreme Court has a final say, yes, it does,” he said.

Kaaronda said the separation of powers doctrine provides that the legislature can enact laws that may alter a given Supreme Court ruling provided that such laws are in compliance with the Constitution.

“Politically, I think the chickens are beginning to come home to roost, as it is becoming more evident that the Constitution that Swapo gave us is indeed anti-African and pro-Western. It is, therefore, hypocritical for Swapo to slam the Supreme Court ruling when all the Supreme Court did is interpret the very Constitution that Swapo tells us to cherish.”

The Constitution’s article 81, on the binding nature of Supreme Court decisions, states: “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.”

‘NOT RELIGIOUS EXTREMISTS’

Meanwhile, church groups have vehemently denied allegations of inciting violence and harassment against the LGBTQI+ community.

However, it has been revealed that certain WhatsApp groups harbour anti-gay members who propagate acts of violence and hostility against LGBTQI+ individuals.

One post on the messaging service singled out a popular Windhoek establishment, Brewers Market, considered to be a safe haven for the LGBTQI+ community, as a target for their aggression and hate speech.

The WhatsApp groups came to life after the Supreme Court ruling directing the government to recognise same-sex marriages concluded outside the country.

Coalition of Christian Churches and Organisations chairperson Shirley Magazi yesterday denied that churches are instigating violence against the LGBTQI+ community, and said allegations to that effect were tactics used by activists to collect more donor funds.

“We are not religious extremists. They say this so that they can make more money from funding. We do not and will never facilitate and condone violence against anyone,” Magazi said.

According to Namibia Equal Rights Movement co-founder Omar van Reenen, a popular LGBTQI+ dating app, Grindr, has reached out to the movement to raise the alarm about a sudden surge in new profiles since the recent Supreme Court verdict.

Van Reenen on Twitter alleged that religious extremists and church leaders are actively encouraging their followers to out, blackmail and harass gay men.

“This is dangerous. Please stay off the app in Namibia,” Van Reenen said, expressing concern for the safety of the LGBTQI+ community.

Also speaking at a press conference yesterday, Alliance of Christian Churches in Namibia member Dolly Nangushe said the Supreme Court decision undermines the country’s moral beliefs and values as reflected in the Constitution.

Nangushe said the ruling may send a bad message around issues like sodomy, rape and paedophilia.

“The church, therefore, calls upon the government to review this ruling and we urge our elected leaders to take the right action. This is the time for the church to speak up and speak the truth without fear or favour. For too long the church has been silenced, but I believe that we can no longer be silent,” she said.

Also speaking at the church media conference, the Alliance of Christian Churches in Namibia’s Deolinda da Fonseca said often when the church speaks truth, people call it hatred.

“Practising or allowing same-sex marriages to be recognised means opening doors for garbage in Namibia,” she said.

Meanwhile, Natangue Ithete, the chairperson of the parliamentary standing committee on economics and public administration, at a separate occasion yesterday expressed his opposition to the Supreme Court decision and made inflammatory remarks against the LGBTQI+ community.

Ithete, who has previously also taken an anti-gay stance, said: “There’s no law that says women must marry other women, men must marry other men. So, we continue to condemn these things and we continue to protect the laws of the Republic of Namibia because we took an oath.”