‘Fixing’ the constitution to undermine courts
No breathing room for LGBTQ community
Experts have rung the alarm over efforts by the legislature to undermine the judiciary, as politicians court votes ahead of 2024.
Parliament’s relentless efforts this week to push through amendments that would invalidate a Supreme Court judgment on same-sex marriages borders on undermining – or even interfering with – the independence of the judiciary, experts said.
The National Assembly this week passed private member’s bills introduced by Swapo hard-liner Jerry Ekandjo to define the term ‘spouse’ and amend the Marriage Act of 1961.
This follows a Supreme Court ruling in May which ordered the ministry of home affairs to favourably consider applications for various permits to foreign spouses validly married to Namibians abroad in same-sex marriages.
Ekandjo wants ‘spouse’ to be granted an explicit heterosexual definition, a situation that would render the Supreme Court ruling invalid.
He mainly relied on Article 81 of the Namibian Constitution, which leaves room for parliament to pass laws to contradict court rulings.
Ekandjo, a former youth minister, also tabled a bill to change sections of the Marriage Act, including to define the terms marriage, same-sex marriage and spouse. The bill further seeks to prohibit same-sex marriage, prohibit the solemnisation of same-sex marriages and to deny the recognition of same-sex marriages, The Namibian reported this week.
Bigger danger
Legal Assistance Centre (LAC) director Toni Hancox said beyond the same-sex marriage hullabaloo lies a bigger danger, when laws and complying with court orders are ignored through parliamentary processes.
“We should all be deeply concerned when a parliamentarian says that they will ‘fix’ the constitution as needed. This would imply that every time government does not agree with a provision in the constitution, they can just change it. This is a very strong message that is being sent about the independence of the judiciary,” she said.
“The judiciary’s role to provide checks and balances would be severely undermined. Another thing of concern is that there is no vocal opposition from parliament. What is the reason for this? Is the focus currently on the elections?”
Hancox also raised concerns regarding the casual and demeaning manner in which Ekandjo’s bills were entertained in parliament.
“The discussion in parliament was deeply disrespectful and was not cognisant of the right to dignity of all, a bedrock of our constitution. The discussion was punctuated by laughter,” she observed.
“In all my time at the LAC, this is the worst attack on the balance between the three arms of government, and on the judiciary in particular.”
At risk
Political scientist Henning Melber said lawmakers involved in the issue in parliament this week were homophobic and in contempt of the Supreme Court, which puts the rule of law at risk.
“Instead of being proud to have such independent judiciary, which adds to the country’s reputation as a democracy based on a human rights framework and civil liberties adopted in the constitution at independence, the current initiative in the National Assembly - widely approved not only by Swapo as party in government but also many members of parliament from other parties - threatens to dismantle a substantial and fundamental element of Namibia’s constitutional democracy and is a worrying sign of the decay in political culture,” he said.
Melber said he fears that a snowball effect may emanate from this week’s events, which will lead to more freedoms being wrestled away from the country’s gay community.
“I find it difficult to conclude if this is a deliberately organised onslaught for further steps to follow, or a knee-jerk homophobic response shared by many, and to be considered as a one-off populist cheap effort as part of an election campaign unfolding.”
“I am not sure if it is a deliberate first step towards the Zimbabwean trajectory, where the rule of law was turned into the law of the rulers. But even if this is not the planned intention, it is a door-opener for this if the National Assembly should adopt the bill.”
Attacks on judiciary
Popular Democratic Movement lawmaker Vipua Muharukua, who described Ekandjo as a ‘hero’ for his bills, raised the possibility of “looking at how judges are appointed” amid attacks on the judiciary.
Ekandjo himself accused judges of being on a “journey to appease foreign interests” and of “promoting satanic behaviour”.
The National Assembly this week passed private member’s bills introduced by Swapo hard-liner Jerry Ekandjo to define the term ‘spouse’ and amend the Marriage Act of 1961.
This follows a Supreme Court ruling in May which ordered the ministry of home affairs to favourably consider applications for various permits to foreign spouses validly married to Namibians abroad in same-sex marriages.
Ekandjo wants ‘spouse’ to be granted an explicit heterosexual definition, a situation that would render the Supreme Court ruling invalid.
He mainly relied on Article 81 of the Namibian Constitution, which leaves room for parliament to pass laws to contradict court rulings.
Ekandjo, a former youth minister, also tabled a bill to change sections of the Marriage Act, including to define the terms marriage, same-sex marriage and spouse. The bill further seeks to prohibit same-sex marriage, prohibit the solemnisation of same-sex marriages and to deny the recognition of same-sex marriages, The Namibian reported this week.
Bigger danger
Legal Assistance Centre (LAC) director Toni Hancox said beyond the same-sex marriage hullabaloo lies a bigger danger, when laws and complying with court orders are ignored through parliamentary processes.
“We should all be deeply concerned when a parliamentarian says that they will ‘fix’ the constitution as needed. This would imply that every time government does not agree with a provision in the constitution, they can just change it. This is a very strong message that is being sent about the independence of the judiciary,” she said.
“The judiciary’s role to provide checks and balances would be severely undermined. Another thing of concern is that there is no vocal opposition from parliament. What is the reason for this? Is the focus currently on the elections?”
Hancox also raised concerns regarding the casual and demeaning manner in which Ekandjo’s bills were entertained in parliament.
“The discussion in parliament was deeply disrespectful and was not cognisant of the right to dignity of all, a bedrock of our constitution. The discussion was punctuated by laughter,” she observed.
“In all my time at the LAC, this is the worst attack on the balance between the three arms of government, and on the judiciary in particular.”
At risk
Political scientist Henning Melber said lawmakers involved in the issue in parliament this week were homophobic and in contempt of the Supreme Court, which puts the rule of law at risk.
“Instead of being proud to have such independent judiciary, which adds to the country’s reputation as a democracy based on a human rights framework and civil liberties adopted in the constitution at independence, the current initiative in the National Assembly - widely approved not only by Swapo as party in government but also many members of parliament from other parties - threatens to dismantle a substantial and fundamental element of Namibia’s constitutional democracy and is a worrying sign of the decay in political culture,” he said.
Melber said he fears that a snowball effect may emanate from this week’s events, which will lead to more freedoms being wrestled away from the country’s gay community.
“I find it difficult to conclude if this is a deliberately organised onslaught for further steps to follow, or a knee-jerk homophobic response shared by many, and to be considered as a one-off populist cheap effort as part of an election campaign unfolding.”
“I am not sure if it is a deliberate first step towards the Zimbabwean trajectory, where the rule of law was turned into the law of the rulers. But even if this is not the planned intention, it is a door-opener for this if the National Assembly should adopt the bill.”
Attacks on judiciary
Popular Democratic Movement lawmaker Vipua Muharukua, who described Ekandjo as a ‘hero’ for his bills, raised the possibility of “looking at how judges are appointed” amid attacks on the judiciary.
Ekandjo himself accused judges of being on a “journey to appease foreign interests” and of “promoting satanic behaviour”.
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