On the quiet radicalism of the Namibian same sex marriage judgment

Earlier this week the Namibian Supreme Court ruled that the government’s refusal to recognise the validity of same-sex marriages concluded outside Namibia for the purpose of immigration law infringes the rights to dignity and equality guaranteed in the Namibian Constitution. While the judgment will, for now, only benefit a few same-sex couples who marry elsewhere, it contains powerful language that could be used to challenge the validity of other legislation that currently discriminates against LGBTIQ+ individuals in Namibia.

This important victory for LGBTIQ+ rights in Namibia follows in the wake of the adoption of a draconian Anti-Homosexuality Bill by the Ugandan parliament, as well as news that an opposition MP had tabled a similar Bill – the Family Protection Bill – before the Kenyan parliament. Some might therefore interpret the Namibian development as bucking a general trend of intensified oppression of LGBTIQ+ people by governments in sub-Saharan Africa.

But the story is more complicated than this.

The first thing to note is that developments in Uganda and Kenya are linked to a concerted campaign in at least 10 countries on the African continent against gay rights, abortion, birth control, and sex education by a far-right US Christian organisation called Family Watch International and its president, Sharon Slater. Slater and her organisation were actively involved in campaigning and strategizing for the adoption of the Uganda Bill. She met with Ugandan president Yoweri Museveni on 2 April this year urging him to add an exemption to the law for LGBTIQ+ people who were being subjected to so-called conversion therapy – a set of discredited practices that attempt to change a person’s sexual orientation.

The second thing to note is that over the past decade several countries on the African continent have gone in the other direction by repealing colonial era laws that criminalised same sex acts. These countries include Angola, Botswana, Mozambique, Lesotho, and Seychelles. These also happen to be countries not targeted by anti-LGBTIQ+ hate campaigns by far-right US Christian groups like Family Watch International. Different states on the African continent are therefore moving in different directions on this issue.

But because so many people who write about the continent persist in portraying it as a single country or amorphous entity, these complexities tend to get lost. (I am reminded here of Nigerian author Dipo Faloyin’s acerbic but inspiring book Africa is Not a Country: Notes on a Bright Continent, which, in turn, was inspired by  the Kenyan author Binyavanga Wainaina’s 2005 magnificent Granta essay, “How To Write about Africa”.)

The recent judgment of a 5-judge panel of the Namibian Supreme Court in Digashu v Government of the Republic of Namibia, Seiler-Lilles v Government of the Republic of Namibia could be added to the positive column, as it opens the door for the possible decriminalisation of same sex acts and other legal reforms in Namibia.

The majority judgment (authored by Chief Justice Shivute) came as somewhat of a surprise. This is because in 2001 the Namibian Supreme Court declared in Immigration Selection Board v Frank that “equality before the law for each person does not mean equality before the law for each person’s sexual relationships”. That judgment also stated that the term “family institution” in the Namibian Constitution and other international instruments “envisages a formal relationship between male and female”, for the purpose of procreation.

In Digashu, the majority held that these statements in Frank amounted to obiter dicta, thus merely the expression of an opinion which was not essential to the decision and was therefore not legally binding on the court in the present case. But the court went further by expressing its disapproval of the statements made in Frank, thus distancing the court from the conservative approach taken in the earlier judgment.

For me the second striking aspect of the majority judgment is its rejection of the argument that public opinion on homosexuality should be decisive in this case. In his lone (reactionary) dissent, justice Mainga relied heavily on public opinion, complaining that the majority judgement “trashes the historical, social and religious convictions of the Namibian people”.

Holding that the impugned provision infringed on the right to dignity guaranteed in article 8 of the Namibian Constitution, the majority confirmed the position in Namibian law that section 8 “does not permit limitations” and is thus “inviolable”, but that the ambit of the right to dignity must be determined “with reference to the constitutional values, the aspirations, norms, expectations and sensitivities of the Namibian people as expressed in the Constitution”.

The court nevertheless held that while public opinion as expressed by the elected representatives in parliament could be relevant to determine the views and aspirations of the Namibian people, “it is ultimately for the court to determine the content and impact of constitutional values in fulfilling its constitutional mandate to protect fundamental rights entrenched in the Constitution”. The majority suggested that courts should be less inclined to follow public opinion when the rights of minorities are in issue, by endorsing the following passage from the judgment of the South African Constitutional Court in S v Makwanyane:

The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process.

This is potentially of great significance as it would make it far more difficult for the government in future to defend other legal provisions that discriminate against LGBTIQ+ individuals on the ground that a majority of Namibians disapproved of same sex acts and relationships. This view is bolstered by the fact that in its equality analysis, the majority also endorsed the view expressed by South Africa’s Constitutional Court in Hoffmann v SAA to the effect that:

Prejudice can never justify unfair discrimination. This country has recently emerged from institutionalised prejudice. Our law reports are replete with cases in which prejudice was taken into consideration in denying the rights that we now take for granted. Our constitutional democracy has ushered in a new era – it is an era characterised by respect for human dignity for all human beings. In this era, prejudice and stereotyping have no place.

The third striking aspect of the majority judgment relates to its finding that the impugned provision also infringed on the right to equality guaranteed in article 10(1) of the Namibian Constitution, which states that “all persons shall be equal before the law”. Although the reasoning of this part of the judgment is not always easy to follow, the majority did not seem to rely on article 10(2) of the Namibian Constitution (which prohibits discrimination of various listed grounds including “social status” and “sex”) because this section does not expressly prohibit discrimination on the ground of sexual orientation.

The applicants had argued that they were being discriminated against on the grounds of “social status” and “sex”. Regrettably, the majority did not express an opinion on the validity of these arguments, leaving the matter open to be decided on another day.

It nevertheless found that the impugned provision infringed on article 10(1) of the Constitution because the differentiation between same sex spouses and heterosexual spouses was “not reasonable in the sense of not being rationally connected to a legitimate statutory object”.

This was so, first, because the majority held that the government had not advanced any legitimate reason for the differentiation. It had merely relied on the earlier judgment of the Supreme Court in Frank as justification for the provision. But even if the government had advanced other justifications for the impugned provision it may have run into problems, given the fact (as I explained above) that the court rejected the idea that public opinion, and specifically public prejudice about homosexuality, could ever justify discrimination against LGBTIQ+ individuals.

Second, this conclusion is bolstered by the fact that the majority emphasised the harmful impact of the discrimination on same sex couples, suggesting that it would be difficult to justify this kind of discrimination because of this harmful impact, which the majority described “far reaching and potentially devastating when compared to spouses in a heterosexual marriage”. The majority further noted that the “result of the differentiation has led to a profound impairment of their fundamental human dignity at a deeply intimate level of their human existence”’.

The majority again quoted approvingly from (and explicitly endorsed) a judgment of the South African Constitutional Court, this time from National Coalition for Lesbian and Gay Equality v Minister of Justice, where justice Ackerman held that:

The sting of past and continuing discrimination against both gays and lesbians is the clear message that it conveys, namely, that they, whether viewed as individuals or in their same-sex relationships, do not have the inherent dignity and are not worthy of the human respect possessed by and accorded to heterosexuals and their relationships. This discrimination occurs at a deeply intimate level of human existence and relationality. It denies to gays and lesbians that which is foundational to our Constitution and the concepts of equality and dignity, which at this point are closely intertwined, namely that all persons have the same inherent worth and dignity as human beings, whatever their other differences may be.

Significantly, this passage comes from a judgement in which the South African Constitutional Court invalidated the country’s colonially imposed sodomy laws. It therefore suggests that the Namibian Supreme Court would be ready to invalidate that country’s sodomy laws if such a challenge came before it.

While the struggle for the full recognition of LGBTIQ+ rights in Namibia is far from won, the judgment is a significant first step towards that goal.

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