A Win for LGBT Rights in Namibia

In the recent case of Digashu and Seiler-Lilles the Namibian Supreme Court was confronted with the interpretation of Section 2(1)(c) of the Immigration Control Act, 1993 (“ICA”). Specifically, the Court was asked to consider whether the term ‘spouse’ extended to same-sex couples lawfully married in foreign jurisdictions, for the purposes of immigration and citizenship rights in Namibia. In a welcome turn of events, the Court found that denying the recognition of same-sex spouses under the ICA was not only a violation of the right to dignity under the Namibian Constitution, but also amounted to unfair discrimination.

The judgement is a win for the rights of LGBTQIA+ persons in a jurisdiction where they remain mostly unrecognized. Instruments such as the Criminal Procedure Act, 2004 allow for arrest without warrant of any person reasonably suspected of having committed sodomy (Ss. 43 and 44, read with Schedule I). Similarly, the Combating of Immoral Practices Act, 1980 has been used to sanitise public spaces from “immoral acts,” which itself is undefined by the Act. However, the term ‘any person’ under Sections 7 and 8 have been susceptible to harmful interpretations that persecute intimate relationships of persons of the same sex. It is in this context that the Namibian Supreme Court’s interpretation of the ICA must be read, and, in this post, I highlight some key take aways from the judgement that underscore why it is an important step in the right direction in its engagement with dignity and anti-discrimination law for LGBTQIA+ persons.

Untethering the Precedent of Frank

First, the Court was confronted with the precedent of Immigration Selection Board v Frank (“Frank”), and whether it was bound by this case. Frank was a Supreme Court judgement that pre-dated the present case and it had reasoned that ‘marriage’ contemplated by the Namibian Constitution meant marriage between men and women only (p. 117). Consequently, homosexual relationships were automatically rendered subservient to heterosexual relationships. The High Court a quo in Digashu considered itself to be bound by Frank, which meant that spouses in same-sex marriages were excluded from Section 2 of the ICA which allowed the authorities to refuse to recognise the parties’ respective spouses.

In quite a progressive turn, the majority before the Supreme Court, however, chose to distinguish the present case from Frank on two fronts.  The first was factual as the applicants in Frank were same-sex partners committed in a long-term relationship, however, they had not concluded a lawful marriage in a foreign jurisdiction [81]. Hence, marriage when validly contracted itself had certain legal incidents that the Court in the present case was willing to protect. Second, the judges principally distinguished between the ratio decidendi and obiter dicta ­(that is, the primary versus subsidiary reasons) in Frank. It was reasoned that Frank’s case rested on a finding of whether Article 18 rights had been breached under the Constitution. This was an administrative question that dealt with fairness and reasonableness of the administrative bodies. Consequently, the majority’s view concerning the recognition of same-sex relationships by the law, and when the same amounted to a universal partnership, remained subsidiary to the determination of the matter (i.e., it was merely obiter) [78]. This allowed the Court to side-step the judicial remarks in Frank where it was stated that Article 4(3) of the Namibian Constitution only contemplated heterosexual marriages (p. 116). This allowed the Court to separate the administrative question in the earlier case from the determination of the lawfulness of same-sex marriages and whether Namibian authorities were bound to recognise them.

Comparativism as a Deliberative Resource

Significant portions of the judgement appear to rely on comparativism as a deliberative resource, while delineating Namibia’s unique constitutional path. It reflects a growing tendency amongst Namibian Courts to deploy a comparative approach when deciding critical constitutional questions. In Jaco Kennedy, for example, the Windhoek High Court considered the jurisprudence on Articles 14 and 15 of the Indian Constitution, whose provisions are in pari materia to the Namibian Constitution [41]. This was used to bolster the anti-discrimination analysis concerning the rights of undertrial prisoners. Recent examples also include the case of Gustavo before the Supreme Court, where Smuts J turned to cases from the South African Constitutional Court to highlight the intimate link between corruption and the rule of law [80].

In a similar vein, in the present case of Digashu, both the majority as well as the dissent use comparativism as a tool to legitimise their reasoning in different ways. Thus, the majority follows the general principle of common law that if a marriage is duly concluded in accordance with the statutory requirements in a foreign jurisdiction, it has be recognised in Namibia. For this, the Court’s relied on developments in the US, the European Court of Human Rights (“ECtHR”) and South Africa, which included a consideration of equal protection clauses being applicable to protect the rights of same sex partners. In this context, the Court concluded that there were no statutory bars relating to marriage (neither were objections such as grounds of public policy raised) which would preclude the operation of the common law principle [89]. After considering the jurisdictional developments which rooted concerns of dignity, equality, and freedom at the core of recognising same-sex marriages, the majority was able to identify a sound basis for the same being protected in Namibia.

Interestingly, the significance of comparativism for the purpose of judicial reasoning is also seen in the contrast between the doctrines adopted by the majority opinion and the dissenting judgement of Mainga J. Both consider the propriety of judicial interference in the sphere of recognition of same-sex relationships. While Mainga J appears to favour judicial deference to the legislature and relies on doctrines such as the margin of appreciation in the ECtHR to support his reasoning [176, 181,  Mainga J, dissenting], the majority instead considered the doctrine of the separation of powers for the purposes of protecting fundamental rights [103]. It then turned to the South African Constitutional Court’s case of Dawood, and confirmed the approach adopted by O’Regan J, who held that legislation violating the rights of individuals to enter and sustain permanent intimate relationships infringes their dignity [107]. This approach cemented the Supreme Court’s interpretation of the term ‘spouse’ in the context of same-sex partners. Specifically, where there is a valid marriage, the right to dignity would be infringed upon where the ICA is interpreted in a manner that failed to recognise such a relationship, impairing the ability of spouses to honour their obligations to one another [108].

The use of comparativism by the Namibian Supreme Court in Digashu is evidence of an increasing degree of cross-fertilisation of concepts (or ‘doctrine-swapping’) in the field of anti-discrimination law whereby some jurisdictions export, while others import (oftentimes with modifications), various concepts in anti-discrimination law (see here). For example, the very concept of indirect discrimination began with the expression in the US case of Griggs, however, with time, it has found presence several other jurisdictions like India (Nishita v UOI), the ECtHR (DH v Czech), and South Africa (MEC v Pillay). In this context, this inter-jurisdictional conversation arguably allows judges to construct ‘better’ judgements by bolstering the legitimacy of their reasoning. Importantly, it does not involve blind deference, but rather involves a discussion to understand how varied approaches can be considered to best address pressing controversies in anti-discrimination law (more here). Particularly, the adoption of comparativism by both the majority and the dissent in Digashu showcases this very conversation. It allowed them to consider the development of ‘rights’ concerning same-sex partners, and how other jurisdictions have offered recognition and protection despite textual limitations.

On Equality and Dignity

Finally, the Court’s analysis under Articles 8 and 10 of the Namibian Constitution, dealing with dignity and equality, is significant for adopting an effects-based test to assess the ICA’s infringement on these constitutionally protected rights. This contrasts with considering an ‘intention’ approach where, to make out a case of disparate treatment, a plaintiff must establish discriminatory intent on part of the perpetrator (for example, Washington v Davis). By focusing on effect, the majority’s analysis placed dignity at the core of protecting the rights of same-sex couples. Importantly, the reasoning also appears to confirm the right to dignity under Article 8 as an absolute right under the Namibian Constitution, as opposed to being either a relative right or a principle.

This effectively means that where there is a clash of claims and where a hierarchical order between dignity and other rights is established, dignity remains at the top of the hierarchy (more here). Interestingly, the majority firmly adopting this approach also confirms the textual mandate of Article 8(1) which maintains dignity as ‘inviolable’, and the Preamble recognising the “inherent dignity (…) of all members of the human family.” In this context, the Court assessed the impact of the differentiation between the way non-citizen spouses in a heterosexual marriage were treated in contrast to those in a same-sex marriage. The Court reasoned that the unfairness of discrimination was to be determined “with reference to the impact upon the victim(s) discriminated against, the purpose sought to be achieved by the discrimination, the position of the victim(s) in society, [and] the extent to which their rights and interests have been affected and their dignity impaired.” [122].

It is important to note that the term ‘spouse’ is undefined in Section 2 of the ICA, and the differentiation was thus seen to have led to a “profound impairment of (…) dignity at a deeply intimate level of their human existence” [123]. Hence, the use of the frameworks of dignity and equality in this context allowed the Court to identify a legal hook for considering an anti-discrimination analysis in the absence of a protected ground (i.e., sexual orientation). Identifying dignitary harm was critical as it was sufficient that the effect of the ICA’s exclusion of certain spouses ran counter to the Constitution’s guarantees by unfairly discriminating against a class of persons, irrespective of whether such class has explicit mention under a protected ground of discrimination. It is important to mention that the legal conception of dignity is often born out of the socio-political and legal pasts of various regimes, including drawing its core from historical experiences of totalitarian systems (here). The use of this legal hook in the present case demonstrates the willingness of the Court to consider the inviolability of dignity, irrespective of the textual limitations in the equality clause. For anti-discrimination cases to come, it would be interesting to see the Court’s analysis with respect to recognising and protecting persecuted minorities, and whether dignitary harm is at the core of such analyses.

Conclusion

It is important to emphasize that the judgement only dealt with the narrow issue of the recognition of same-sex spouses under the ICA where the parties conclude their marriages in foreign jurisdictions. As such, it did not define the contours of constitutional protection that may apply to same-sex marriages more generally, nor did it speak to the validity of these being concluded within the territory of Namibia [134]. Nevertheless, the Namibian Supreme Court’s recognition of same-sex marriages contracted abroad is still a novel development, particularly given that Namibia still carries the legacy of the anti-sodomy law inherited from South Africa in 1920. Hence, the majority emphatically concluding that same-sex couples are to be accorded “the same degree of dignity, concern and respect that is shown to heterosexual couples” [132] is indeed a welcome change, and hopefully sets the tone for further developments that both recognise and better protect the rights of same-sex couples in the region.