The question of standing to live and work in Namibia, for a non-Namibian in a gay relationship with a local person, has come to the country’s highest court before now. Perhaps the most memorable sentence from that previous decision, Immigration Board v Frank, was this: ‘Equality before the law for each person does not mean equality before the law for each person’s sexual relationships.’
This time round, however, the supreme court approached the question very differently. More than 20 years have passed since the Frank judgment, the judges on the court have changed, as have views about the issues involved among many people. There’s also a distinct difference between the way the majority considered its decision in 2001 and the way the legal argument was structured this time round, with a different approach to constitutional litigation and protection of rights.
Two couples were involved in the appeals jointly decided by the supreme court this time: two men, Matsobane Daniel Digashu and Johann Hendrik Potgieter, and two women, Anita Seiler-Lilles and Annette Seiler. In both matters, one of the couple is a Namibian. Unlike the earlier Frank case considered by the supreme court, both couples had married validly in a country where such marriages are allowed. (In the Frank matter, the couple were in a long-term relationship but hadn’t actually married.) Both couples here wanted to move to Namibia and for the non-Namibian spouse to be allowed to enjoy the normal employment and residence benefits of someone married to a Namibian husband or wife.
Under the Immigration Control Act, the spouse of a Namibian citizen is entitled to live and work in Namibia without needing the permits that non-citizens must apply for, including permanent resident and employment permits. The ministry of home affairs and immigration refused to grant these permits, however, and the two cases ended up in court, first in the high court and then, on appeal, at the supreme court.
At the high court, debate had focused on the application that the government said Seiler-Lilles and Digashu needed to bring for permits, but at the start of their decision, the supreme court majority – the appeal was decided four to one – said there was a more fundamental question: if the two were recognised as ‘spouses’, there would be no need to apply for permits.
The position of the ministry was that spouses in a same-sex marriage were excluded from the provisions of the Immigration Control Act and it didn’t matter that their marriages had been validly contracted outside Namibia, in accordance with the law applicable in the countries where the marriages had been concluded.
Central issue for decision
The four judges thus found that ‘The central issue for determination in this appeal is … whether the refusal of [the ministry] to recognise lawful same-sex marriages of foreign jurisdictions (in this case, South Africa and Germany) between a Namibian and a non-citizen, is compatible with the constitution.’
While the full bench of the high court had unequivocally found that the ministry’s approach conflicted with the constitutional rights of the two spouses, it had also found that the Supreme Court’s decision in the Frank case was binding and that it therefore couldn’t grant the relief sought in the present cases.
The apex court therefore had to begin deciding the appeal, with an analysis of the Frank decision.
It pointed out that the couple in that earlier matter had not been legally married to each other, and that this was one feature by which the two newer cases could be distinguished.
In the ‘very lengthy judgment’ of the majority in the Frank appeal, a number of significant statements had been made about same-sex relationships, said the majority in the supreme court, and although the present supreme court would be bound by previous decisions of that same court, the judges would need to tease out what was the essential rationale for a decision and what were obiter dicta (comments made in passing).
After analysis, the majority in the new matter concluded that the ‘entire digression’ of the majority in the Frank case, which had been headed, ‘The issue of the respondents’ lesbian relationship and the alleged breach of their fundamental rights’, ‘in no way’ determined the outcome of the case. This section had in fact been ‘entirely subsidiary, extraneous and unnecessary to the legal rule established in that case.’
The remarks were made in passing, and the majority in the Frank matter had ‘unfortunately failed to heed the very sound, salutary practice articulated by this court … that a court ought to decide no more than what is absolutely necessary for the decision of a case, particularly in constitutional matters.’
Given this finding, there was no need for the full bench of the high court in the present matters to have followed the majority in the Frank case. It could further have distinguished Frank from the two new cases on the basis that they both involved valid marriages.
It was a well-established principle of common law, the majority continued, that if a marriage is duly concluded in accordance with the statutory requirements for a valid marriage in a foreign jurisdiction, it should be recognised in Namiba.
The ministry had not raised any reason relating to public policy as to why the two marriages should not be recognised in accordance with this general principle, nor did the ministry question the validity of the appellants’ marriages.
On this basis alone, the two marriages should have been recognised by the ministry, said the court, declaring that Digashu and Seiler-Lilles were thus both to be regarded as a ‘spouse’ for the purpose of the Immigration Control Act and therefore exempt from needing special residence and employment permits.
In a further, significant section of the judgment, the majority considered the rights to dignity and equality of the spouses. Dignity was an essential element that lay at the very root of the constitution and, as the supreme court had held before, protection of dignity didn’t allow limitations. While the ministry argued that dignity ‘is a value judgment to be decided by parliament’, the court majority said this was not so. A court would decide on the issue of the right to dignity with reference to the constitutional values, aspirations and expectations of the Namibian people ‘as expressed in the constitution’.
Public opinion, expressed by elected members of parliament, had relevance in manifesting the views and aspirations of the people but, under the doctrine of the separation of powers, it was 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.’
‘That is the very essence of constitutional adjudication which is at the core of our constitution.’
The majority also conducted a searing analysis of the ministry’s exclusion of the couples from the ambit of ‘spouses’, saying it conflicted with the constitution as it infringed their rights to equality.
The ministry’s differentiation between the two couples (as spouses in a same-sex marriage) was ‘far reaching and potentially devastating when compared to spouses in a heterosexual marriage,’ the judges said. That differentiation had led to a ‘profound impairment’ of their fundamental human dignity at a deeply intimate level of their human existence,’ they found. The ministry had raised no ‘rational connection’ to a legitimate statutory object that could justify this impairment.
‘We expressly disapprove of the obiter statement in Frank, that “equality before the law for each person does not mean equality before the law for each person’s sexual relationships.”
‘This approach is incompatible with the right to equality properly interpreted in a purposive, right-giving way, as has been repeatedly held to be the approach to interpretation held by this court. It also fails to take into account the human worth and dignity of all human beings including those in same-sex relationships, which is at the very core of the equality clause.’
The majority also expressed their disapproval of other key statements in Frank about the meaning to be given to the terms ‘family’ and ‘marriage’, including the statement that the family institution in the constitution and other international instruments envisages a formal relationship between male and female, for the ‘purpose of procreation.’
However, the four judges also underscored that while the legal consequences of marriages were many, involving a wide range of legislation, the judgment in these two matters only addressed the recognition of spouses for the purpose of the Immigration Control Act at this stage.
Coming after the judgment of the majority, Chief Justice Peter Shivute, deputy chief justice Petrus Damaseb, David Smuts and Elton Hof, the decision of the fifth judge, Sylvestor Mainga, dissenting from the majority, was something of a disappointment, at least as far as rights-based litigation is concerned.
It relied on anecdote rather than on clear constitutional argument, and in fact Mainga said that, given his view of the matter, there was ‘no reason to enter into the argument raised on dignity, discrimination and equality’. ‘This is a matter that should not have been decided on the constitutional relief,’ he declared, adding that parliament couldn’t keep quiet on same-sex relationships much longer and would have to ‘regulate the issue in one way or another’.
Those comments do flag a problem created by the new judgment, however – how much longer will the Namibian legislature be able to hold out against permitting same-sex marriage now that such marriages, solemnised in another country, must be regarded as valid for local purposes?