Schlettwein breaks rank over same sex bill

Swapo member of parliament (MP) and minister of agriculture water and land reform Calle Schlettwein has broken ranks with party secretary general Sophia Shaningwa over the private member’s bill tabled by another party MP Jerry Ekandjo last Thursday.

Ekandjo has come under fire for his sentiments attacking the judiciary while presenting his private member’s bill in parliament calling for a law to explicitly define the word spouse in the Immigration Control Act and Marriage Act.Commenting on the bill yesterday Schlettwein said: “I believe the underlying consequences of the way a constitutional matter is dealt with may be severe and, therefore, I cannot support the bill in its current state”.

Ekandjo was forced to withdraw his remarks after saying: “We can not be insulted by the judiciary”, while presenting a private member’s bill, backed by Shaningwa.

Ekandjo also said: “The judiciary must declare their interest” in the recent judgement, prompting the deputy speaker of parliament, Loide Kasingo, to ask him to withdraw that statement as well.

Legal Assistance Centre director Toni Hancox described Ekandjo’s attack on the judiciary as “inappropriate”.

“The judiciary is one of the arms of government in a democracy and is essential for the separation of powers. This must be respected to ensure checks and balances. This attack is inappropriate. A private member’s bill is not introduced by the executive branch of government. The bill will be contrary to the judgement but will in all likelihood be challenged again as unconstitutional,” Hancox said.

“This is not about same-sex marriage, as such. It is about the supremacy of our Constitution as a whole, which is the bedrock of our legal system. Legislation can be passed to deal with a judgement. However, only the Supreme Court can interpret our Constitution,” said Hancox.

Legal consultant Dianne Hubbard said the bill presented before parliament contradicts the essential point of the Supreme Court’s recent ruling and also has a potential to compromise the separation of powers.

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

“If the bill passes it would subvert the separation of powers which is the essence of Namibia’s constitutional framework.”
She said 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 the government. Those who are speaking against same-sex marriage today might someday 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,” she said.

“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?”

According to Hubbard, the private member’s bill presented threatens the future of Namibia in fundamental ways.

“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 that 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.”

“And 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 that parliament can simply “contradict” a ruling of the Supreme Court on a constitutional issue, as one of the bills would have it.”

Hubbard argued that “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”.

MIXED FEELINGS

Home affairs minister Albert Kawana told The Namibian he was not interested in commenting on the bill tabled by Ekandjo, while heads of the Popular Democratic Movement (PDM) parliamentary caucus Elma Dienda and Maximalliant Katjimune also declined to comment on the bill when approached for comment yesterday.

Leader of the official opposition and PDM president McHenry Venaani and fellow parliamentarian Nico Smit did not respond to messages sent to them, despite an indication that they read the texts.

Meanwhile, Swapo vice president Netumbo Nandi-Ndaitwah said she was busy attending to something and could not clearly hear the questions posed to her over the phone.

Attorney general Festus Mbandeka also declined to comment on the matter.

Swapo central committee member Helao Ndadi, however, said both the government and president Hage Geingob have failed to pronounce themselves on the issue.

Ndadi, who is one of the founding members of Swapo, said the private member’s bill tabled by Ekandjo should have been the president’s or the government’s stance on the matter.

“The president should have said homosexuality is not allowed in Namibia. He could have done it, like the Ugandan president. I support Ekandjo because we cannot allow our country to be turned into Sodom and Gomorrah,” Ndadi said.

Ekandjo’s bill contradicts home affairs executive director Etienne Maritz who recently said the ministry would abide by the Supreme Court judgement recognising same-sex marriages formalised outside the country.

Former prime minister Nahas Angula said if he was still an MP he would support the bill.

“To me, an institution called family is a very important institution, because it’s a basic unit of society. If somebody tries to distort or to spoil and degenerate the institution, I will not accept that,” Angula said.

Former works and transport minister Sankwasa James Sankwasa also indicated his support for Ekandjo’s bill, which he described as a bid to save the country and Swapo from the gallows of Sodom and Gomorrah.

Sankwasa praised Ekandjo for “standing up to face the seemingly well engineered political onslaught on Swapo”.

“In fact, surely any MP who knows that he or she was elected by the majority of straight [heterosexual] Namibian citizens will support the bill tabled by Ekandjo without failure.”

Swapo chief whip in parliament Hambyuka Hamunyera said he will revert tomorrow on whether the private member’s bill presented by Ekandjo was discussed in the party’s caucus meetings before.

Shaningwa told The Namibian the private member’s bill is provided for in the Constitution, and nowhere in the Constitution or the standing rules and order, does it require the private member’s bill to pass through the Swapo caucus.

“The private member’s bill of 6/7/2023 tabled by Ekandjo is of national interest and remains his right to table,” said Shaningwa.

“You also wanted to know whether as Swapo secretary general I made inputs to the private member’s bill tabled by Ekandjo – to this I want to be explicitly clear that Ekandjo is and shall remain one of those founders who brought into being the Constitution of Namibia, thus I believe he knew exactly at which stage and why he tabled a private member’s bill in the National Assembly.”