The New Marriage Act: Testing Namibia’s Commitment to Its Constitution

The new Marriage Act was published in the Government Gazette in late 2024, although it will only come into force on a future date set by the minister of home affairs.

Its publication has given rise to a new round of public debate about its constitutionality. There are two key constitutional issues to consider. 

Same-Sex Marriages Concluded In Namibia

The first concern is the act’s definition of “marriage” as “a legal union entered into voluntarily between two persons of the opposite sex and of full age”. 

This is actually nothing new.

The common (court-made) law has always limited civil marriage to marriages between one man and one woman.

What is new is parliament’s endorsement of this long-standing common-law rule.

But regardless of whether the rule is embodied in a statute or in common law, it could be declared unconstitutional by the courts as violating the constitutional guarantees of equality and dignity. 

This would depend on the courts’ interpretation of Article 14 of the Namibian Constitution, which says “men and women” have the right to marry and to establish a family.

Does this mean men have the right to marry and women have the right to marry, or that the right applies only when a man and a woman want to marry each other?

This question has not yet been conclusively decided in Namibia. 

Article 14 of the Constitution was consciously modelled on Article 16 of the Universal Declaration of Human Rights.

The reference to “men and women” in that document was inserted at the behest of women because there was still widespread discrimination against women in matters relating to marriage at the time it was drafted – and the wording is generally understood as giving both sexes an equal right to marry rather than requiring that they must marry someone of the opposite sex.

However, it remains to be seen how the courts will rule on this issue if a legal challenge is mounted. 

Same-Sex Marriages Concluded In Other Countries 

The second issue of concern is the Marriage Act’s approach to “foreign marriage”, which is limited to marriages concluded outside Namibia between people of the opposite sex.

In terms of the act, a foreign marriage which does not satisfy this definition will not be considered valid in Namibia. 

The act similarly defines “spouse” as a person “who is married to a person of the opposite sex” for purposes of both marriage and foreign marriage.

Further, it applies these restrictive definitions of “marriage” and “spouse” to all references to these terms in any Namibian law.

This seems to flatly contradict the Supreme Court’s decision in the 2023 Digashu case that same-sex marriages concluded in other countries must be recognised for purposes of the Immigration Act, which gives non-Namibian spouses the right to reside in Namibia with their Namibian citizen partners without the need for any other visa or permit.

The Supreme Court ruled that any interpretation of this provision which excludes spouses in same-sex marriages would infringe on the interrelated constitutional rights to dignity and equality. 

The court was careful to limit its decision to the specific issue before it, stating that the “precise contours of constitutional protection which may or may not arise in other aspects or incidents of marriage must await determination when those issues are raised”.

But the Marriage Act appears to contradict even the carefully limited holding of the Digashu case. 

Where Are We Headed? 

The Marriage Act’s disregard for the Digashu ruling is likely to put parliament and the Supreme Court on a collision course. 

What is at stake is the understanding of the very purpose of a constitution.

The Supreme Court says a constitution which gives the courts power to review the constitutionality of all legislation is designed “to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process”.

This protects minority groups, vulnerable individuals and people who hold unpopular views.

But if parliament is all-powerful, without any checks and balances, then anyone’s fundamental constitutional rights could be infringed by a sufficient majority of parliamentarians.

People applauding the Marriage Act may be in the majority today when it comes to public opinion but could well find themselves in the minority on some other issue in the future – and then they are likely to sing a different tune. 

In a press release issued in December, the Society of Advocates pointed out that the Constitution specifically prohibits parliament from making any law that abolishes or abridges the fundamental rights and freedoms conferred by the Constitution – and reminded members of parliament (MPs)that they all take an oath to uphold and defend the Constitution.

This duty applies even in difficult cases where some MPs’ personal views do not accord with the court’s decisions on a constitutional issue.

Namibia should not abandon the principle of separation of powers which has served it so well up to now.

Parliament should amend the Marriage Act to make it compliant with the Digashu ruling before it comes into force. 

• – Dianne Hubbard, a legal consultant with many years experience in public interest law, prepared this article on behalf of the Institute for Public Policy Research. For more information, see ‘Current Issues in Gender and the Law’ at: https://ippr.org.na

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