Govt plans to introduce bill to modify recent Supreme Court ruling on same-sex marriages conducted outside Namibia
Prime Minister Hon Saara Kuugongelwa-Amadhila on Tuesday said the government would bring a Bill to Parliament this week seeking that parliament modifies the relevant common law principle so that same-sex marriages, even where solemnized in countries that permit it, cannot be recognized in Namibia, where the right to marriage is guaranteed between men and women of mature age.
Specifically, the Prime Minister underscored the importance of this matter, stressing that the planned Bill, against the recent judgment of the Supreme Court, will be backed by an act of parliament in terms of Article 66 of the Constitution.
The ministerial statement came as Kuugongelwa-Amadhila was addressing the parliament on 06 June at the National Assembly, noting that over the last few days, in the aftermath of the judgment, there has been “strong and at times emotive” reaction and responses to it.
According to her, various non-government organizations, spiritual leaders, church organizations, and traditional leaders have petitioned the government and parliament with complaints and submissions expressing their unhappiness over the judgment.
It comes as the Supreme Court, in two consolidated appeals, namely Seiler-Lilles and Digashu v Minister of Home Affairs under case numbers SA 6/2022, delivered its judgment on 16 May after the Full Bench of the Supreme Court heard their appeals on 03 March.
She added that both appeals relate to cases in which Namibian nationals were married to foreign nationals in same-sex marriages concluded in countries that recognize same-sex marriage, namely South Africa and Germany.
“The Court had to determine, amongst others, whether or not the Ministry of Home Affairs was correct in its refusal to recognize the two foreign nationals in the foretasted same-sex marriages who were married in a foreign country that has legalized such marriages, for purposes of qualifying as spouses of the Namibian same-sex partners, as contemplated under section 2(1)(c) of the Immigration Control Act, 7 of 1993,” stated Kuugongelwa-Amadhila.
The above provisions of the immigration act exempt spouses and dependents of Namibian nationals from necessary permits under Chapter 6 of the Immigration Control Act for entering and residing in Namibia, she added.
“The applicants/appellants, both in the High Court and in the Supreme Court, challenged the position of the Ministry of Home Affairs and its refusal to recognize them as foreign spouses of Namibian nationals in marriages concluded in and under laws of countries that recognize same-sex marriages.”
She added: “The Ministry of Home Affairs, and the Attorney-General representing the Government both in the High Court and Supreme Court, opposed the appellants’ cases, principally on the basis that with due regard to the Namibian common law and Article 14(1) and (3) of the Constitution, and a previous Supreme Court judgment (what is known as the Frank case), same-sex marriages are not recognized in Namibia, and therefore the two cannot qualify as spouses in terms of section 2(1)(c) of the Immigration Control Act, and thus they were under obligation to apply for necessary permits to enter and reside in Namibia.”
As a result, the Supreme Court majority judgment ruled and found that the Ministry of Home Affairs’ approach to exclude foreign spouses of Namibian nationals in same-sex marriages concluded in countries that recognise same-sex marriage from the beneficial exemption provided for under section 2(1)(c) of the Immigration Control Act, infringed the interrelated rights to dignity of the appellants (in terms of Article 8) and equality (in terms of Article 10) under the Namibian Constitution, according to the Prime Minister.
However, she explained that the validity of the marriage was determined using the common law principle known as “lex loci” celebrations. “The above principle means that the validity of the marriage is determined under the statutory requirements of the country in which the marriage was concluded.”
She further noted that the court overruled its earlier decision in the Frank case that was the authority on the issue of same-sex marriages – which decided that sexual orientation was not one of the grounds envisaged under Article 10 and Article 14 of the Constitution.
Moreover, the Supreme Court, therefore, found and held that both Mr. Digashu and Ms. Seiler-Lilles are to be regarded as spouses for section 2(1)(c) of the Act since they were in marriages that concluded in compliance with the laws of South Africa and Germany, where they were conducted.
“The Supreme Court, in its judgment, however, pointed out that since marriages are manifold and multi-faceted and implicate a wide range of Namibian law, its judgment only relates to the recognition of foreign spouses in same-sex marriages, concluded abroad in compliance with laws of those countries, for purposes of section 2(1) (c) of the Immigration Control Act,” she concluded.
Meanwhile, SWAPO Parliamentarian Hon Jerry Ekandjo recently gave a notice of motion concerning the “unconstitutional” Supreme Court judgment on same-sex marriages, moving that they discuss it on Wednesday in the National Assembly.
