Niël Terblanché
The Attorney General, Festus Mbandeka yesterday revealed that because of magnitude of the Supreme Court ruling which compels the government to recognize same-sex marriages concluded outside the borders of Namibia, the government is in the process of conducting a legal assessment of the ruling, before determining the appropriate course of action within the available constitutional parameters.
Mbandeka however says the democratic system in Namibia guarantees freedom of speech and expression in terms of Article 21(1) of the Namibian Constitution.
In a statement, Mbandeka stressed that 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 organs of state namely the Executive, the Judiciary and the Legislature.
“Bear in mind 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 lawfully enacted,” Mbandeka said.
The landmark ruling pertains to an application lodged by binational couples, one married in Germany and another married in South Africa, who had settled in Namibia.
The foreign spouses were denied residency permits under the Immigration Control Act, which did not recognize them as a “spouse.”
This restrictive understanding would have left their unions unrecognized for immigration purposes and meant that couples had to leave the country or live apart.
In 2022, the High Court considered the claims and ruled that it was unable to grant immigration benefits under existing precedent but expressed concern that the couples’ rights had been violated and emphatically decried discrimination against same-sex couples. The Supreme Court in an appeal agreed that their rights had been violated, finding that the discriminatory provisions of the Immigration Control Act violated the constitutional guarantees of dignity and equality.
The Supreme Court’s decision adds to a growing body of jurisprudence in the region, recognizing the human rights of all persons regardless of sexual orientation.The decision recognizes that couples who marry abroad have entered a legal union and that ignoring or invalidating that union jeopardizes their human rights. That recognition is critically important for binational couples and offers a practical option for many to remain and build a life with their families in Namibia.
Mbandeka said that the government will inform the public of its official response to the Supreme Court ruling, at the appropriate time.
