The Constitution Trumps Swapo’s Marriage Policy!

By way of context, Namibia is plagued by endless historical social development challenges.

The most prominent are poverty, unemployment, inequality and housing.

This is the message of both national and international data sources on Namibia.

For example, a 2022 World Bank report ranked Namibia as the third most unequal society in the world.

The report flags inequality of opportunity, wealth inequality, and spatial inequality as the prime drivers of the inequality curse.

The 2019 Namibia National Human Development Report compiled by the UNDP shows that, on average, 75,5% of salaried workers in Namibia are paid a meagre N$1 353 per month.

Most of these workers are women, young people and live in rural areas.

The 2018 Labour Force Survey shows that the pre-Covid unemployment rate among the youth, women, and in rural areas has reached alarming proportions.

Add to this the humanitarian crisis of informal settlements, and the unresolved ancestral land question and reparatory justice for genocidal acts committed by Germany.

The list is endless. But the point has been made.  

One would have thought these are the kind of issues that should keep the ruling elite awake at night. Not the private carnal affairs of individuals.

SEEING RED OVER SEX

How, for instance, are the sexual preferences of consenting adults an issue warranting an urgent central committee meeting?

Is that not a red herring? A strategy to deflect attention from a failure to address the real issues facing Namibia?

Be that as it may, no red herring can alter the fact that human rights are inalienable, universal and inherent to all people, including those who identify as LGBTIQ+.

Mother Teresa reminded us that human rights are not privileges conferred on us by governments. Nor by political parties, traditional leaders, parents, or churches for that matter.

Human rights are the birthright of every human being by virtue of him/her/they belonging to the human race.

It is therefore not possible to accept the contention that Swapo’s 1977 marriage policy should be the benchmark for apportioning fundamental rights and freedoms to people.

Such thinking, respectfully, is grossly misplaced, and a legal misnomer.

It exaggerates the importance of Swapo’s policies in our country’s legal architecture and hierarchy.

More so, Swapo’s marriage policy appears oblivious to the fact that the concept of family has evolved over time as pointed out by respective United Nations treaty bodies, as well as the African Commission on Human and Peoples’ Rights.

They all consistently stress that family must be understood in a broad sense.  

SUPREME LAW

The Namibian Constitution is the supreme and paramount law of the land.

It alone confers fundamental rights and freedoms.

Its shortcomings in this regard are generously mitigated by Article 144, which automatically incorporates international agreements and treaties binding on Namibia into our legal order.

Through Article 144, the human rights landscape in Namibia is exponentially expanded.

Furthermore, the rights in the Constitution ought to be interpreted expansively and not restrictively as suggested by certain political parties, churches, moralists and others.

It is equally important to stress that the fundamental rights conferred by the Constitution cannot be bartered away.

This presupposes that the issue of the constitutionality of the recognition of same-sex marriages can therefore not be referred to a referendum in which a majority view would prevail over the minority.

In our legal order, the power of judicial review of all legislation is vested in the courts.

The cardinal reason for this is to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process.

‘WE ARE ALL BORN FREE’

It is only if there is a willingness to protect the weakest among us that all of us can be secure that our own rights will be protected.
This is the core message of the Supreme Court in the Digashu judgement.

In fact, if the court were to defer this fundamental constitutional duty to public opinion, it would amount to an unlawful abdication of its judicial power and a miscarriage of justice of enormous proportions.

It remains to be seen what purported executive and legislative steps the government will take to circumvent the now broad meaning accorded to the word spouse in the Immigration Control Act as per the directive of the Swapo central committee.

It is sufficient to stress, though, that any different, creative construction, or legal interpretation of the word spouse will still have to comply with the Constitution.

Specifically, with the Article 22 limitation requirement that no law should be aimed at a particular individual or groups of individuals for it to qualify as a justifiable and reasonable limitation.  

In closing, all human beings are born free and equal in dignity and rights as eloquently proclaimed in article 1 of the Universal Declaration of Rights.

This basically means all individuals are equal as human beings by virtue of the inherent dignity of each human person.

What makes this so difficult to comprehend and/or to accept?

• John B Nakuta is a social justice scholar. He is a life activist on justice, human rights, the rule of law, and governance. This article is written in his personal capacity.