Same-sex marriage not Namibian law – Namandje

Lawyer and Swapo central committee member Sisa Namandje says same-sex marriage is not in accordance with Namibian law and the sodomy challenge should have been dismissed.

In a public lecture on Saturday, Namandje spoke under the theme, ‘Can There Be A Constitutional Court-made Law or Principle Having No Roots in the Language and Scheme of the Namibian Constitution? A Critical Look at the Recent Judgement of the High Court of Namibia on the Crime of Sodomy’.

“We support the government’s position on this issue, which is that sodomy should remain a crime. We support the government’s position that same-sex marriages are not in accordance with our law,” Namandje said.

Last month, the High Court declared the common law offence of sodomy and “unnatural sexual offences” unconstitutional. It also declared the inclusion of the crime of sodomy in sections of the Immigration Control Act and the Defence Act unconstitutional and invalid.

Sisa Namandje

Namandje said Swapo, being the authentic and sole representative of the Namibian people, had a Family Act which was then incorporated into Namibia’s Constitution.

The Swapo Family Act defines marriage as “the community of lives of a man and woman regulated by statute”.

Namandje further said when faced with constitutional matters, Namibian courts should give serious consideration to the nation’s values, cultures, aspirations and sensitivities, before making a decision.

Namandje’s comments follow home affairs, immigration, safety and security minister Albert Kawana, tabling an amendment bill to replace the current Marriage Act 25 of 1961.

The bill clearly stipulates that spouses may only be from the opposite sex.

This will make same-sex marriages in Namibia illegal.

Kawana tabled the bill in the National Assembly last Tuesday, saying the Namibian government had a duty to protect society’s values. The bill reads: “’Spouse’ means a person, whether male or female, who is married to a person of the opposite sex and includes such person who is a party to a foreign marriage.”

However, some of Namibia’s legal experts say the marriage amendment bill recently tabled by Kawana will not stand a constitutional test.

This comes after the Supreme Court last year ruled that the Namibian government must recognise same-sex marriages legally concluded outside the country.

Carli Schickerling

Lawyer Carli Schickerling, who has represented same-sex couples in litigation in Namibian courts, told The Namibian last week the bill would have to be in line with Article 10 and 22 of the Constitution.

Article 10 deals with equality and freedom from discrimination, and Article 22 is about limitations to fundamental rights and freedoms.

Schickerling said she believes certain sections of the bill would be declared unconstitutional.

“And the courts must sometimes step in to protect the minorities against the majorities because otherwise the majority would always be in a situation where they are going to discriminate against minorities,” she said.

Schickerling further said as it is an election year, some parties are merely saying what they think voters want to hear.

“But this is a free country, democracy reigns and all people should enjoy the protection of our Constitution, not just those who feel that they are religiously superior to others,” she said.

Another lawyer, Nafimane Halweendo, told The Namibian last week the courts are constitutionally bound to interpret Namibia’s body of law.

He said the Supreme Court judgement held that Namibia’s Constitution cannot be interpreted to remove the dignity of people based on their sexual orientation or the fact that they are in same-sex marriages.

“So, the bill would effectively mean that marriage in Namibia should only take place between people of the opposite sex.”

Halweendo said the Supreme Court noted that it is high time that the right to dignity is also afforded to people in homosexual relationships.

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