Constitutional Test on LGBTQI+, Same-Sex Marriage & Kawana Marriage Bill

MM9Insights | By: Manycoloured Manley Nowaseb

After the judgment in the matter of same-sex marriage concerning Namibia by the Supreme Court last year, the matter still brews some significant attributes thus in reference with the recently published artifact about the minister of home affair, Albert Kawana fostering a marriage amendment bill in parliament.

The proposed bill comes after a striking judgment also in favour of LGBTQI+ community has also stirred mixed responses among Namibians therefore it cannot be a surprise that the bill is tabled by the current chief of the ministry which will cater to the citizens through its ministerial service execution which ever relevant judgments, rules and laws coming on now and in the future on the matter.

The key question in the debate of same-sex relationships ‘however it is outlined in LGBTQI+ context’ is that the Constitution of Namibia is placed to be tested, therefore any or all directives of legislation in a bill or judgments set in the judiciary, whether it was made in the past, now or that in the future around this matter is crucial to determine the fade and fruitfulness of the Namibian Constitution.

While I will leave this writing with some vital questions of understandable law, I must highlight my writing is on reading the recent news publications around the matter, where narratives shined on; constitutional values of dignity, fundamental human rights, equality and none-discrimination, freedom of expression and the key word “spouse” to be used in the marriage of same-sex partners. News relevant also messaged that the ‘Kawana Bill’ built its arguments on religion and traditions grounds as well as values and cultural norms of the country, which a lawyer insinuates are misdirecting for a secular state.?

Without much to say further, I am outlining the following master questions and wish to understand if there was considerations of these questions in the legal framework of directives concerning this matter to date. The questions are based on the Namibian Legislation’s readiness to draft more future laws around the person’s (for and against LGBTQI+) referred to in the matter and the especially the LGBTQI+ persons rightful position in our society, very importantly.

Now to start, the Namibian constitution cater for ‘men and women’ in its drafting, referred to as ‘male and female’ as the now known gender directive of our constitution, so my question. Are the LGBTQI+ a singular gender or to be dispatch to represent each one standing for its own gender (within the LGBTQI+ cycle), because the LGBTQI and + is meaning to stand for multiple gender types and in so being - how intergrading is their being in the Namibian context, this meaning if we have ‘men’ and ‘women’ already then what do we refer to them, to give a fitting description to their gender(s) and how relative and inclusive are they in the contents of the tested constitution? Mind with reference of how some of the related persons’ wish to be addressed and treated in public places from past experiences of LGBTQI+ community persons (to avoid names like “mofie” etc..). Example, for the disabled persons there are bi-laws to sustain their inclusion (through signs on toilets etc.., so for the LGBTQI+ community if they are identified through their called gender(s) will there be such privileges for the LGBTQI+ community toilets, Namibian Police Holding Cells etc…, this is the future quest after the LGBTQI+ gender(s) identity.

The next question is complex on addressing the fundamental human rights, freedom of expression and inclusion as well as the dignity of the Namibian citizenry which are currently divided with mixed answers on the matter, that is in agreement and those in oppose. Now if the same-sex intimacy in relationships is viewed as “disgrace and taboo” by other Namibians and the LGBTQI+ Namibians have worked so hard in many years to triumph their inclusion in the systems rules and regulations as so attained, my question is; has the constitution failed the undercoated citizens who are against the phenomenon to make them feel left out or out of place every time they get into social engagements of the “opposite norms” of the LGBTQI+ in the society – because this was the same feeling the LGBTQI+ was concerned about and it has just reversed against the other party and the rule is extended to information and education of making the vast community understand and accept the coexistence with the? LGBTQI+ on the Namibian soil…?

Meaning, will a none-LGBTQI+ father feel comfortable to explain to his daughters that men can engage in same-sex relationship with other men (if so, did the father violate or wrongly interpreted the context of our constitution to his children and what image does he paint to his manliness in explaining so?) ?and in the same would a mother feel proud if her son brings his same-sex partner and say we are looking to get married and the mother disagrees and these cause a feud between mother and son (did the mother violate or wrongly interpreted the context of our constitution – knowing she gave birth to a son and expected a woman as spouse?).

Just to express a crazy marking to the matter; if a LGBTQI+ community male, who regard himself as female is addressed in the pubic, say by a shop assistant as “Sir” after the LGBTQI+ rights and identity recognition, while dressed in a women’s dress and the shop assistant knows he is male.., whom between the two entities does the identity conflict to be charged?

Now the above point also takes me to address the insinuation of the Lawyer Uno Katjipuka-Sibolile on the matter as sub-titled Secular State (The Namibian 05/07/2024), where she sided that Kawana’s Bill is to protect the values, cultural norms and morals of the country. She is quoted, “This means the legislature cannot rely on or import religious views and values in to legislative process, because that would amount to imposing one group’s, or even individual’s religious beliefs onto the general public, which in and of itself would violate our Constitution,” unquote.

Her rule in expression of the above quote is reversible and would therefore also violate the constitutional rights of the none-LGBTQI+ community to be impost on to accept, understand and cohabit with LGBTQI+ when they are in oppose to the very norms of the sexual conduct of the LGBTQI+ nature in contras to sexual orientation and nature of the constitutionally installed “man and woman” as spouse. If the lawyer therefore agrees that the Kawana Bill is to protect the values, cultural norms and morals of the country (which should be a conduct of good governance), is it a clear statement that the Namibian citizens was build on a solid foundation of beliefs on the prudence of Men (Male) and Women (Female) (our gender difference in following Acts) and Children(s) Act (boy or girl) to be context as Family (Act) as this all are outlined in the constitution, then the people will definitely raise red flags and bring about the question of who are the LGBTQI+ community against the standards Namibian Constitution of Person’s (male and female)?.

It is more like to ask is the LGBTQI+ community ‘and its being’ in contrast to the order of fundamentality of human values of the constitution of Namibia as well as other movements, organizations, or entities whom based their beliefs and practices in their formation in Namibia, to not violate the articles of the constitution when they had drafted their organs constitutions?

Therefore if the LGBTQI+ is a movement or organization, let them draft their constitution articles to be matched with the constitution of Namibian and be seen fitting however, if the LGBTQI+ are ordinary human beings as I know they are, then let legislation embrace their inclusion as male and female and not discard the merits of the constitution because the LGBTQI+ community feel their sex orientation which drive them to conduct sex in this or that manner of their craving should NOT be used to test the fundamentals of the constitution to bring forth a none-constituted identity. These are their beliefs, this is who they want to be and Namibia also belongs to them but an identity cannot be given to them and it should be acceptable because there is also motions in the law which limits the fully function of rights, when the execution and expression of those (LGBTQI+ community) rights has or intends to violate the rights of the other persons, the fundamental rule of the Namibian persons identity and moreover, the common rule of human existence.

In close, the powers from Judiciary through the Executive and mainly the Legislative branch must come to terms that the bills tabled related to a different sexual orientation by Namibians to be in contest and a race against the standard two sources (male and female) sexual stand of human existence is a gross violation of human rights, humanity and human dignity – not just in Namibia, but worldwide.

We cannot table things of our beliefs into questioning and challenging the root of human existence, it is uncalled for, because even if we will have to do that our legislation will have to draft billions more bills and acts to fit in all because humans are designed to always be ill-fated, never happy and always aggrieved and the courts will be forced to make millions of different judgments on the same matter based on different merits until even the constitution will be rewritten and even that new constitutions to be will not satisfy the humans (male and female), even if thus scenario is repeated a fifty lifetimes. Take note that the future of human dignity through its fundamental gender-identity is at stake.??? ?

?

?

*Manycoloured Manley Nowaseb is a Socio-economic Views Analyst, the founder of MM9Insights Email: [email protected] (a virtual entity which look into socio-economic community issues), a Community Activist: Chairperson of One Voice Namibia Community Activism and Activist for Disabled Persons through Disability Ends Namibia.