Sisa Namandje, a well-known Namibian lawyer, has voiced strong opinions on the recent judicial rulings concerning same-sex marriages. In a public lecture at the Swapo Party School, Namandje emphasised the need for judicial restraint and the importance of considering Namibia's cultural and societal context when interpreting the Constitution.
Namandje's lecture comes in the wake of the Namibian Supreme Court's landmark ruling on May 16, 2023, which directed the government to recognise same-sex marriages concluded in foreign countries.
The decision has sparked widespread debate and highlighted the tension between evolving human rights norms and traditional societal values. These debates are occurring amid discussions of a new proposed "Marriage Bill" that seeks to override the Supreme Court judgement and explicitly refuses to recognise same-sex marriages, whether conducted in jurisdictions where such unions are recognised. The proposed bill limits the definition of spouse to only a man and a woman.
In his address, Namandje argued that the judiciary should exercise caution and avoid making decisions that effectively legislate from the bench. He stressed that constitutional interpretation should not overstep the legislative function of Parliament, urging respect for the separation of powers.
He cautioned that the court should not use purposive interpretation on matters not expressly stated in the constitution to effectively usurp the legislative power of parliament.
Namandje also highlighted Namibia's unique cultural and historical context, arguing that any changes to societal norms should be approached with sensitivity to these factors. He suggested that Namibia, as a sovereign nation, is not obligated to recognise marriages that contradict its policies and laws.
"Recognition of foreign same-sex marriages should not be imposed without broad societal consensus and legislative action," he said.
Calling for legislative action, Namandje proposed that matters related to same-sex marriages and other evolving social norms should be decided by elected representatives in Parliament rather than through judicial decree. He emphasized the need for democratic processes to address such significant societal changes.
Namandje was, however, quick to point out the necessity of respecting the judiciary and ensuring that opposing views are expressed in a manner that respects the independence of the judiciary, avoiding any insults directed at the judicial body.
He says the Namibian Constitution remains one of the world’s best constitutions, and the independence of the judiciary remains the cornerstone of the country's democracy.
Opposing views were presented by legal practitioners Fedden Mukwata and Uno Katjipuka-Sibolile, panellists on "The Wheels of Justice with Daniel Nadunya." They cautioned that Namibia should guard against becoming a parliamentary sovereignty as opposed to remaining a constitutional democracy where there is a clear separation of power and respect for court decisions.
Mukwata and Katjipuka-Sibolile stressed the importance of upholding judicial independence and warned against legislative actions that could undermine court judgments. "Any legislative amendment that seeks to contradict court judgements might have trouble passing the test of the Namibian Constitution once challenged in court," they argued.
The proposed "Marriage Bill" also leaves two private members' bills by SWAPO parliamentarian Jerry Ekandjo redundant, though it seeks to achieve the same results.