The ‘Ekandjo Bills’ – Opinion

Why you should NOT support them no matter how you feel about same-sex issues

What are ‘Ekandjo notes’?

These are two laws introduced by MP Jerry Ekandjo and passed by parliament in 2023. They have not yet been signed by the president, which means that they are not yet valid laws in Namibia.

One of them is the ‘Marriage Amendment Bill’: it limits civil marriages solemnized in Namibia to members of the opposite sex. Whether the policy is right or wrong, this is already the legal position in Namibia in terms of customary law (the law developed over time through court decisions).

In any case, the Marriage Act 1961 that the bill would amend is already about to be replaced by a new marriage law that is expected to be introduced in parliament later this year.

The other ‘Ekandjo Bill’ is the ‘Definition of Spouses Bill’ and it is the one we should be most concerned about.

Jerry Ekandjo

What drove the ‘Ekandjo Bills’?

In 2023, the Supreme Court ruled that it was unconstitutional for Namibia to refuse to recognize spouses in same-sex marriages performed outside Namibia for immigration purposes.

The case involved two couples in which Namibian citizens married non-Namibian citizens of the same sex while living in countries that allow same-sex marriage. Namibian citizens sought to live in Namibia with their spouses.

The Supreme Court ruled that same-sex foreign spouses must be treated like any other foreign spouse with regard to permission to live in Namibia, in order to fulfill constitutional rights to dignity and equality.

The bill on the definition of spouses attempts to “overturn” this Supreme Court decision.

What’s wrong with allowing parliament to override the Supreme Court?

The basis of Namibia’s system of government is the separation of powers between three branches of government: the legislative (parliament), the executive (the president and the cabinet) and the judicial (the courts).

Simply put, Parliament makes laws, the executive implements them, and the judiciary interprets them and ensures that they are in line with the Constitution.

This division of functions between three different branches helps prevent abuses of power because the three different branches of government monitor and limit each other.

If Parliament can “override” the Supreme Court’s interpretation and application of the Constitution, then one of the key functions of the judiciary is lost.

This would make parliament all-powerful, leaving the final interpretation of all constitutional rights in its hands.

But shouldn’t majority rule be the deciding factor?

One of the most important functions of a constitution in any country is to protect the rights of minorities.

As the Supreme Court noted in its ruling, a constitution is designed to protect the rights of those who cannot be adequately protected through the democratic process.

The Constitution is not really necessary for people who share the opinions of the majority; Its key function is to protect people who have unpopular opinions or life choices.

Everyone should worry about this because we are all likely to find ourselves in a minority at some point, due to our race, ethnicity, religion, political opinions, or lifestyle choices.

Doesn’t the Constitution give parliament the right to contradict a ruling of the Supreme Court?

No, it’s not like that. Article 25 of the Constitution says that parliament must not pass any law that “suppresses or limits the fundamental rights and freedoms” conferred by the Constitution.

Any part of any law that attempts to do this is invalid. Who enforces and protects these fundamental rights and freedoms? According to article 25, it is the judicial power.

Furthermore, the Constitution gives the Supreme Court the final say on whether a law passed by parliament conflicts with the Constitution.

Article 64 empowers the president to refuse to sign a bill that may conflict with the Constitution.

In such a case, the matter is referred to the court. If the court concludes that the disputed bill contradicts the Constitution, it cannot become law.

The counterargument is based on Article 81 of the Constitution, which says that a decision of the Supreme Court is binding “unless it is overturned by the Supreme Court itself or contradicted by a lawfully enacted act of Parliament.”

The key word here is “legally.” This means “subject to the Constitution”, as repeatedly stated in article 63 on the powers and functions of the National Assembly.

Diana Hubbard

Article 81 comes into play when a court interprets the meaning of some provision of a law that does not involve constitutional rights.

For example, suppose a court interprets the meaning of a word in a law, which happens frequently. If there is no constitutional right at stake, parliament is free to amend the law to clarify what was intended.

But, read in context with the rest of the Constitution, Article 81 cannot mean that Parliament is permitted to “override” decisions of the Supreme Court on the application of the Constitution and the fundamental rights and freedoms it protects.

This approach would make parliament all-powerful, undermining the system of separation of powers.

This would force Namibia to go back to the drawing board and fundamentally rethink its system of government.

Why should I care about all this if I agree with parliament on the same-sex issue?

Whatever you think about gay and lesbian relations, you should be concerned about the stability of Namibia’s constitutional democracy.

Our Constitution has contributed to the respect of Namibia’s status as a peaceful country that respects the rule of law.

Scrapping such a stable system based on the separation of powers could hamper investor confidence in Namibia and limit future development.

Furthermore, if Parliament can do whatever it wants regardless of judicial interpretations of the Constitution, none of us can feel secure in our constitutional rights.

Namibia’s constitutional framework shows that democracy involves more than unconditional majority rule.

The guarantee of dignity and equality applies to “all people,” including those who do not belong to the general opinion.

Furthermore, the preamble to the Constitution states that the rights that are the cornerstone of Namibia’s system of government “are most effectively maintained and protected in a democratic society, where the government is accountable to freely elected representatives of the people, operating under a sovereign constitution”. and a free and independent judiciary.”

So what is the way forward?

The President should act within the confines of the Constitution by invoking Article 64 to refer the ‘Ekandjo Bills’ to the courts to determine whether or not they were “lawfully” enacted by Parliament in accordance with the Constitution.

  • * Dianne Hubbard is a legal consultant with many years of experience in public interest law and a passion for trying to make legal issues clear and accessible. Watch this space for regular columns on legal topics.

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