The ‘Ekandjo Bills’

Why you should NOT support them no matter how you feel about same-sex issues

What are the ‘Ekandjo Bills’?

These are two laws introduced by MP Jerry Ekandjo and passed by parliament in 2023. They have not yet been signed by the president – meaning they are not yet valid laws of Namibia.

One is the ‘Marriage Amendment Bill’: It limits civil marriages solemnised in Namibia to members of the opposite sex. Whether the policy is right or wrong, this is already the legal position in Namibia in terms of common law (the law developed over time through court decisions).

In any event, the 1961 Marriage Act the bill would amend is already on its way out, soon to be replaced by a new marriage law expected to be tabled in parliament later this year.

The other ‘Ekandjo Bill’ is the ‘Definition of Spouses Bill’ and is the one that should worry us most.

What prompted the ‘Ekandjo Bills’?

In 2023, the Supreme Court found it was unconstitutional for Namibia to refuse to recognise spouses in same-sex marriages concluded outside Namibia for immigration purposes.

The case involved two couples where Namibian citizens married non-Namibian citizens of the same sex while living in countries that allow same-sex marriage. The Namibian citizens were seeking to live in Namibia with their spouses.

The Supreme Court ruled that foreign same-sex spouses must be treated like any other foreign spouses regarding permission to live in Namibia, in order to comply with the constitutional rights to dignity and equality.

The Definition of Spouses Bill attempts to ‘overrule’ this Supreme Court decision.

What’s wrong with letting parliament overrule the Supreme Court?

The bedrock of Namibia’s government system is the separation of powers between three branches of government – the legislature (parliament), the executive (the president and cabinet) and the judiciary (the courts).

Simply put, parliament makes laws, the executive implements them and the judiciary interprets them and makes sure they are in line with the Constitution.

This division of functions among three different branches helps prevent abuses of power because the three different branches of government monitor and limit each other.

If parliament can ‘overrule’ the Supreme Court’s interpretation and application of the Constitution, then one of the key functions of the judiciary is lost.

This would make parliament all-powerful, leaving the final interpretation of all constitutional rights in its hands.

But shouldn’t majority rule be the deciding factor?

One of the most important functions of a constitution in any country is to protect the rights of minorities.

As the Supreme Court pointed out in its judgement, a constitution is designed to protect the rights of those who cannot be adequately protected through the democratic process.

The Constitution is not really needed by people who share the opinions of the majority – its key role is to protect people who exercise unpopular views, or life choices.

Everyone should care about this because all of us are likely to find ourselves in a minority at some stage – because of our race, our ethnicity, our religion, our political views or our lifestyle choices.

Doesn’t the Constitution give parliament the right to contradict a Supreme Court ruling?

No, it doesn’t. Article 25 of the Constitution says parliament must not make any law that “abolishes or abridges the fundamental rights and freedoms” conferred by the Constitution.

Any part of any law that attempts to do this is invalid. Who enforces and protects these fundamental rights and freedoms? According to Article 25, it is the judiciary.

Moreover, the Constitution gives the Supreme Court the final say on whether a law passed by parliament conflicts with the Constitution.

Article 64 empowers the president to refuse to sign a bill that may be in conflict with the Constitution.

In such a case, the matter is referred to the court. If the court concludes that the disputed bill contradicts the Constitution, it cannot become law.

The counter-argument is based on Article 81 of the Constitution, which says a Supreme Court decision is binding “unless it is reversed by the Supreme Court itself, or is contradicted by an Act of Parliament lawfully enacted”.

The key word here is “lawfully”. This means “subject to the Constitution”, as Article 63 on the powers and functions of the National Assembly states repeatedly.

Article 81 comes into play when a court interprets the meaning of some provision of a law that does not involve constitutional rights.

For example, suppose a court interprets the meaning of a word in a law – something which happens frequently. If no constitutional right is involved, parliament is free to amend the law to clarify what was intended.

But, read in context with the rest of the Constitution, Article 81 cannot mean that parliament is allowed to “overrule” Supreme Court’s decisions on the application of the Constitution and the fundamental rights and freedoms it protects.

This approach would make parliament all-powerful, undermining the system of separation of powers.

This would force Namibia to go back to the drawing board and fundamentally rethink its system of government.

Why should I care about any of this if I agree with parliament on the same-sex issue?

Regardless of how you feel about gay and lesbian relationships, you should care about the stability of Namibia’s constitutional democracy.

Our Constitution has contributed to Namibia’s respected status as a peaceful country that respects the rule of law.

Discarding that stable system based on the separation of powers could hamper investor confidence in Namibia and constrain future development.

Furthermore, if parliament can do anything it wants regardless of judicial interpretations of the Constitution, none of us can feel secure in our constitutional rights.

Namibia’s constitutional framework shows that democracy involves more than unqualified majority rule.

The guarantee of dignity and equality applies to “all persons” – including those outside mainstream opinion.

Moreover, the preamble to the Constitution states that the rights which are the cornerstone of Namibia’s system of government are “most effectively maintained and protected in a democratic society, where the government is responsible to freely elected representatives of the people, operating under a sovereign constitution and a free and independent judiciary”.

So, what is the way forward?

The president should act within the confines of the Constitution by invoking Article 64 to refer the ‘Ekandjo Bills’ to the courts for a determination of whether or not they were “lawfully” enacted by parliament under the Constitution.

• * Dianne Hubbard is a legal consultant with many years of experience in public interest law and a passion for trying to make legal issues clear and accessible. Watch this space for regular columns on legal topics.