Legislature not allowed to strip individuals of their dignity

Niël Terblanché

While fully acknowledging that the recent ruling of the Supreme Court of Namibia only recognizes same-sex marriages from the point of view that foreign spouses of Namibians be granted citizenship in the country, members of Parliament are campaigning zealously to change the Namibian Constitution to nullify the finding of a full bench of Supreme Court Justices.

Chapter 6 of the Immigration Control Act, 7 of 1993, exempts spouses and dependents of Namibian nationals from obtaining special permits to enter and reside in Namibia.

Namibia’s Prime Minister Saara Kuukongelwa-Amadhila as well as Member of Parliament and member of the Constituent Assembly of Namibia, Jerry Ekandjo made headlines last week when they said that they intend to introduce a bill that would compel the legislature to modify, in terms of article 66 of the Constitution, by an Act of Parliament, the relevant common law principle recognised by the Supreme Court Justices in their ruling with regard to same-sex marriages.

Kuugongelwa-Amadhila and Ekandjo both stated in Parliament that various non-governmental organizations, spiritual leaders, church organisations, as well as traditional leaders, have petitioned the Government and Parliament with complaints and submissions expressing their unhappiness over the judgment.

Earlier on in the public debate, members of opposition parties and other community leaders, without acknowledging exactly what the Supreme Court ruling entailed, called for a referendum that would allow the people of Namibia to decide whether they would accept same-sex marriages on principle.

Festus Mbandeka, the Attorney General of Namibia earlier on in the public debate stated that Article 81 of the Constitution provides that, a decision of the Supreme Court shall be binding on all other Courts and Persons in Namibia unless it is reversed by the Supreme Court itself or contradicted by an Act of Parliament when lawfully enacted.

“Exercising these rights, especially with regard to the subject matter of the recent Supreme Court ruling, must be done in a constructive, responsible and respectful manner that does not violate the rights of others and or undermine the constitutional mandate of any of the three branches of the State namely the Executive, the Judiciary and the Legislature,” Mbandeka said.

The Law Society of Namibia (LSN) has expressed deep concern about the public attacks on the Judiciary following the recent Supreme Court judgement.

According to Clive Kavendjii, the Chairperson of the Law Society of Namibia, there can be no justification for the attacks on the Judiciary especially where such attacks interfere with the independence of the Judiciary.

“Attacks on the Judiciary have serious ramifications for the rule of law and the administration of justice. In any constitutional democracy founded on the rule of law, the judiciary is an essential and integral part of the system of checks and balances and to this end, it is of cardinal importance that judges perform their work without fear of reprisal and intimidation,” Kavendjii said.

According to Kavendjii, Article 78 of the Namibian Constitution underscores the independence of the Judiciary and enjoins people not to interfere with the work of the judicial officers and demands of all other organs of the State, to protect the Judiciary.

Advocate Richard Metcalfe said during an interview with Windhoek Observer that the response of Prime Minister Kuukongelwa-Amadhila in Parliament recently is disappointing.

Metcalfe was of the opinion that her statement raised the issue of the legislature attempting to revoke a Supreme Court decision on interpretation of the law.

“Such a response evokes a sense that where political pigeons don’t like a correct decision by legal eagles, they seek to circumvent it. Where a decision is in their favour, they respect it. It defeats the object of the separation of powers between the executive, legislature and judiciary guaranteed by our Constitution,” he said.

He said it is a serious affront to the Constitution and a dangerous move that will emasculate the judiciary.

Metcalfe was of the opinion that there should be no legislative challenge to strip any individual or minority group of their Constitutional Rights as expounded by the Supreme Court. Neither can politicians gratuitously legislate the Constitutional rights of any person away. He said any such legislation is going to be struck down by the superior courts.

“The disrespect of our Supreme Court and LGBTQ+ community raging amongst certain mealie-mouthed individuals or groups in Namibia makes a referendum but a useless exercise. It would provide a platform for those who forget the people’s struggle with a colonial regime that negated their dignity by legislation to strip LGBTQ+ individuals of their very dignity. How ironic that our aged heroes and retired clerics now invoke apartheid tactics to discriminate openly against fellow Namibians yet laud our superior courts when a decision is made in their favour,” he said.

Metcalfe said that Namibians need to hang their heads in shame when people deny respect for the dignity of others in the name of a religion or politics.

“It was thought that Namibians could engage constructively and with respect in a broad referendum but the present diatribe of hate and disrespect simply shows that we as a collective entity of Namibians are no longer able to treat each other with dignity and respect. It further underlines the importance of our judiciary to interpret our law and to guide the moral compass of Namibians on the sanctity of the Constitutional right to dignity and respect for all,” he said

Metcalfe stated that the Supreme Court has made a ruling which is correct and logical in law.

“Such a decision needs to be respected and implemented,” he concluded.

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