Gay 'spouses' case: Namibia's high court urges supreme court to change its mind

22 January 2022 · Carmel Rickard

In a most unusual judgment, a full bench of Namibia’s high court has spelled out its strong disagreement with a decision made 21 years ago by that country’s highest court – and has urged the presently constituted Supreme Court to reconsider its views on the matter. The case, crucial for the country’s LGB community, and for human rights more broadly, concerned two same-sex couples (both couples involved one Namibian and one non-Namibian partner) ranged against the immigration authorities. The majority in a 2001 supreme court judgment had held that same-sex relationships were deliberately not recognised by the constitution, but the high court has now said while it was bound by this decision, it could not agree with it, and urged that the Supreme Court reconsider the matter.

Read judgment

If ever there was a judgment that teaches the necessity for a reader to go beyond the text of the order, this is it.

On the face of it, the order in the case seems a complete disaster for the two couples who had approached the court for help. But a reading of the fly note, not to mention the body of the decision, makes clear that it is far more complicated – and more promising for the applicants – than that.

The case concerns two same-sex couples who need the help of the courts because they claim they are being discriminated against by the immigration authorities.

Recognised

In the case of two women, married under German law, one partner is Namibian and the other is German. The German woman was refused permanent residence though she more than meets the requirements. The reason given her is that Namibia does not recognise same-sex marriages or relationships.

Heard with that case was a matter involving two men, one Namibian and the other a South African. They were married in SA but their marriage was likewise not recognised by the immigration authorities. In this case, the non-Namibian partner was refused an employment permit.

The two couples applied for an order that their civil marriages be recognised by the immigration selection board, and that they be recognised as ‘spouses’ in terms of the Immigration Control Act, with all the benefits that recognition as spouses would imply.

Stumbling block

If, however, the court found that the word ‘spouse’ as used in this law did not include same-sex spouses, then they asked that the relevant section of the law should be declared unconstitutional.

For both couples, the most significant stumbling block was a decision by Namibia’s supreme court delivered in 2001. The majority in that case held that Namibia did not recognise same-sex relationships and that the framers of the constitution deliberately excluded such relationships from constitutional protection.

When the current cases were argued, counsel for the two couples urged that the high court should not consider itself bound by the 21-year-old supreme court decision. Instead, it should hold that the remarks by the court that stood in the way of assisting the two couples were ‘obiter’ – comments made ‘by the way’ - rather than central to the issue being decided. If the comments were indeed made in passing, then the high court would not need to heed them and could find differently.

Essential

Counsel for the immigration authority, on the other hand, argued that the supreme court’s comments were essential to the judgment, and not made merely in passing. The high court was thus bound to follow that decision, according to this line of argument.

The full bench of three high court judges found that the remarks in the supreme court majority decision of 2001 were not made in passing, but captured the essence of that court’s findings. The three judges held that the high court was thus bound by the decision, and could not make any contrary findings.

However, said the high court, if it should hold the view that the findings of the supreme court in that earlier decision were wrong, or outdated, then the three high court judges were free to spell out their reasons for this conclusion and, courteously, urge the present supreme court to reconsider and, if necessary, change the law.

Oath of office

And that is exactly what happened.

In several key paragraphs, the three judges explained that they believe the Supreme Court decision of 2001 was wrongly decided and urged that that court reconsider the decision of the earlier, differently constituted bench.

Writing about the essence of the earlier decision, the high court wrote, ‘A significant amount of the reasoning, as we demonstrate below, was without foundation, and we cannot in line with our constitutional mandate and oath of office as judges, in any way align ourselves with them.’

‘Cherry-picking of human rights’

Then, in a resounding paragraph, comes this:

‘We cannot in a functioning democracy, founded on a history such as our own, come from a system of unreasonable and irrational discrimination, to obtain freedom and independence, and then continue to irrationally and unjustifiably take away human rights of another segment of Namibian citizenry, simply because of their [sexual] orientation. It amounts to cherry-picking of human rights, and deciding whose rights are more ‘human’, and to be protected, more than others. This is not what our democracy was founded upon. We suggest a proper reconsideration of a most imperative recognition of inviolable human rights under article 8.’

The three judges also examined the international law cited in the earlier decision, and concluded that it was wrongly used as a basis to find against recognising gay relationships.

Living document

‘Because [the constitution] is a moving, living, evolving document, [standing] evolution and the test of time, [it must] be broadly interpreted so as to avoid the austerities of tabulated legalism,’ they wrote.

There was another interesting issue dealt with by the high court: why had the attorney-general been silent on the case? That silence was a matter ‘of serious concern’, said the full bench. Why had the AG decided to abstain from participating in the proceedings, ‘given the magnitude of this matter, with grave legal, constitutional and social consequences for the Namibian people’?

The judges said that the AG was the principle advisor to the President and the government, and was duty bound to protect and uphold the constitution. ‘It is irresponsible, in our view, for the AG to sit idle and not file papers to indicate the position of government in a matter of this nature, particularly where the AG was served with the application.’

Rebuke

What will happen now? Presumably, the two couples will note an appeal to the supreme court. That court will no doubt agree to hear the matter and the question of whether the earlier supreme court decision was correct will surely be at the centre of the argument between the two sides.

And, surely, given that stinging rebuke by the high court, the AG will be present when the matter is argued in the supreme court – and have something to say on the matter.

* The Southern African Litigation Centre supported this case

Carmel Rickard

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