Last week’s ruling by Namibia’s Supreme Court on same-sex marriages legally conducted abroad has sparked a public outcry.
By a majority of four to one, the judges awarded non-Namibian partners in same-sex marriages the same rights as other spouses.
Even political office-bearers, who took an oath to respect the rule of law, have joined a campaign against the verdict.
The preamble to Namibia’s Constitution states that the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is indispensable for freedom, justice and peace”.
Further, “the said rights include the right of the individual to life, liberty and the pursuit of happiness, regardless of race, colour, ethnic origin, sex, religion, creed or social or economic status”.
Chapter 2 (4) on citizenship clarifies under (3) (aa) that those who “in good faith marry a Namibian citizen” qualify for citizenship.
It does not specify where (and under which laws) such a marriage is conducted.
Chapter 3 on Fundamental Human Rights and Freedoms stresses under 8 (1): “The dignity of all persons shall be inviolable.”
And further, that “no persons shall be subject to … degrading treatment”. Article 10 enshrines ‘Freedom from Discrimination’ in no uncertain terms.
BREAKING IT DOWN
Article 14 on family is of particular interest: “Men and women of full age, without any limitation due to race, colour, ethnic origin, nationality, religion, creed or social or economic status shall have the right to marry and to found a family. They shall be entitled to equal rights as to marriage, during marriage and at its dissolution.”
The wording does not limit equal rights to partners of the opposite sex. It allows “men and women of full age, without any limitation … to found a family”.
While it seems some people assume this excludes same-sex marriages, the Constitution does not.
Opponents refer to a law criminalising same-sex relations which has not been applied since independence.
Hence, one can conclude it reached its expiry date with the adoption of the Constitution emphasising civil rights for all, free of discrimination.
There seems to be some sort of moral double standards to now refer to such discrimination, as enshrined in an anachronistic law, while, rightly so, dismissing any other forms of discrimination.
Article 23 on ‘Apartheid and Affirmative Action’ clarifies under (2): “Nothing … shall prevent parliament from enacting legislation providing directly or indirectly for the advancement of persons within Namibia who have been socially, economically or educationally disadvantaged by past discriminatory laws or practices”.
Article 25 on the ‘Enforcement of Human Rights and Freedoms’, under (3), empowers a competent court to right wrongs “should the court come to the conclusion that such rights or freedoms have been unlawfully denied or violated, or that grounds exist for the protection of such rights or freedoms by interdict”.
HUMAN RIGHTS FOR ALL?
By acknowledging the legality of marriages entered into by Namibians outside their country, the Supreme Court did exactly this.
If, as argued by some, other countries’ laws should not be recognised as they infringe on Namibian legislation, all marriages entered into by Namibians in other countries should be declared null and void.
Should meme Netumbo Nandi-Ndaitwah and tate Epaphras Denga Ndaitwhah, married like many others in exile, re-marry at home to obtain valid legal status? Sounds silly.
One cannot accept other countries’ laws as valid on marital status only when it suits you, but dismiss other legal marriages in the same country because you don’t like them.
This is discrimination and violates the principles that guide the Constitution.
Opponents argue that same-sex marriages are Western-imposed values.
This contradicts reliable evidence that same-sex relations existed in many local communities worldwide (including African societies) before colonial times.
Words for such relationships and sexual orientations in local languages testify to this.
Leading voices of protest come from Christian churches. But Christianity has been – in contrast to same sex relations – an export of the colonising world.
It was Christianity which imposed values on African societies, including condemnation of same-sex relations.
Other critics maintain that following the same logic, marriage by customary law should be recognised.
Please note that Namibia’s Constitution does so explicitly in Article 4 (3) (b).
Finally, a word on hypocrisy and panic fantasies.
The public upheaval suggests Namibia will face an invasion of same-sex couples in which a Namibian citizen married the man or woman he or she loves abroad.
As if Namibia is under siege by an onslaught of members of LGBTI communities. These married couples likely don’t exceed a two-digit number.
For them there are more preferable places to live as recognised and respected members of societies that do not discriminate legally.
And their like-minded communities usually prefer to be left in peace and keep to themselves.
Deciding in favour of Namibia as the home and place to live and work is a sign of their loyalty to the country, not an act of sabotage.
Members of LGBTI communities who simply want to be tolerated deserve to be treated as equal before the law.
In a country in which the rape and the abuse of minors by straight men and gendered violence is infinitely higher than their number, this seems just and fair.
Love knows no borders. That’s why apartheid failed when prohibiting relations between humans of different pigmentations.
Consenting adults loving each other is a fundamental human emotion and relationship which deserves protection and recognition.
- Henning Melber joined Swapo in 1974. He is extraordinary professor at the University of Pretoria and the University of the Free State.
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