Marriage Act not yet in force
Although the publication of the newly proposed Marriage Act in the Government Gazette has unleashed a storm in social media, justice ministry executive director Gladice Pickering has confirmed that the law is not yet in force.
"A law must be approved in parliament and then signed by the president before it is published in the State Gazette. If you look at the law on our web resource, NamibLII, it says 'assented to on 2 October 2024' ' – which is the date the president signed it – and then 'not commenced' which means it is not yet in force," she explained.
Pickering noted that she cannot yet provide clarity on when the law is expected to come into effect.
"The ministry of home affairs is the custodian of this law, so they must first finalise the regulations surrounding this law," she explained.
Serious repercussions
Legal Assistance Centre (LAC) director Toni Hancox believes that the law could, to a certain extent, strip the Supreme Court of its powers if it were to face a challenge in that very court.
"The Supreme Court's ruling [in the Digashu and Seiler-Lilles case] will be negated by the new law. Only the Supreme Court can amend its own rulings. This law directly contradicts that ruling, so essentially the legislative branch is taking away the judiciary's position," she explained.
Hancox noted that if this precedent is set, policymakers in the future may make new laws to circumvent Supreme Court rulings if they are dissatisfied with that court's decisions.
She also explained that any consequences of the Supreme Court's ruling in cases like those of the Digashu and Seiler-Lilles couples would no longer be valid.
"Because the new law specifically states that any marriages concluded in the past, present or future that contradict this law will not be recognised in Namibia, it means that any immigration documentation issued as a result of that ruling will simply no longer be valid."
Landmark judgment
In May last year, the Digashu and Seiler-Lilles couples received a ruling from a full bench of Supreme Court judges, ordering that their marriages – performed abroad – be recognised by the home affairs and immigration ministry.
The court ordered the ministry to grant the same immigration benefits to Anita Seiler-Lilles and Daniel Digashu, the foreign spouses of Anette Seiler and Johann Potgieter, as granted in the case of other marriages.
Human rights lawyer Norman Tjombe noted that Namibians who are dissatisfied with this new law or any other law may approach the courts with an application. "Costs are a completely different conversation, but there are institutions that will help with this kind of application," he said.
"A law must be approved in parliament and then signed by the president before it is published in the State Gazette. If you look at the law on our web resource, NamibLII, it says 'assented to on 2 October 2024' ' – which is the date the president signed it – and then 'not commenced' which means it is not yet in force," she explained.
Pickering noted that she cannot yet provide clarity on when the law is expected to come into effect.
"The ministry of home affairs is the custodian of this law, so they must first finalise the regulations surrounding this law," she explained.
Serious repercussions
Legal Assistance Centre (LAC) director Toni Hancox believes that the law could, to a certain extent, strip the Supreme Court of its powers if it were to face a challenge in that very court.
"The Supreme Court's ruling [in the Digashu and Seiler-Lilles case] will be negated by the new law. Only the Supreme Court can amend its own rulings. This law directly contradicts that ruling, so essentially the legislative branch is taking away the judiciary's position," she explained.
Hancox noted that if this precedent is set, policymakers in the future may make new laws to circumvent Supreme Court rulings if they are dissatisfied with that court's decisions.
She also explained that any consequences of the Supreme Court's ruling in cases like those of the Digashu and Seiler-Lilles couples would no longer be valid.
"Because the new law specifically states that any marriages concluded in the past, present or future that contradict this law will not be recognised in Namibia, it means that any immigration documentation issued as a result of that ruling will simply no longer be valid."
Landmark judgment
In May last year, the Digashu and Seiler-Lilles couples received a ruling from a full bench of Supreme Court judges, ordering that their marriages – performed abroad – be recognised by the home affairs and immigration ministry.
The court ordered the ministry to grant the same immigration benefits to Anita Seiler-Lilles and Daniel Digashu, the foreign spouses of Anette Seiler and Johann Potgieter, as granted in the case of other marriages.
Human rights lawyer Norman Tjombe noted that Namibians who are dissatisfied with this new law or any other law may approach the courts with an application. "Costs are a completely different conversation, but there are institutions that will help with this kind of application," he said.
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