The right to family life (Part 1)

John J. Fredericks writes:From its beginnings until its termination, marriage imposes reciprocal duties of support upon the spouses.The spouses determine as to how and who will support whom and which one is more in need of maintenance and support. Maintenance provides and includes the provision of accommodation, clothing, food, medical services and other necessities. Accommodation forms part of the duty and responsibility of the spouses to support each other in a safe and secured environment, and that implies that they have to stay together to support each other.It goes without saying, that during the existence of the marriage, both spouses are entitled to live in a matrimonial home, irrespective of whether they are married in community or out of community of property, which one is the legal owner or legal tenant, or if one of the spouses confer it on the other. It is a sui generis (that is, unique) and invariable right, because of the consequence of marriage.The above description is a “legal, social and cultural” scenario for a heterosexual marriage, and so the question to be asked and answered, is what makes it different for a same-sex marriage?WHAT IS THE DIFFERENCE?When same-sex couples are in a valid, legitimate and lawful marriage, concluded in “good faith”, as one of the requirements for a foreigner getting married to a Namibian stipulates, then what makes the same-sex marital union legally different from heterosexual marriages?The difference most probably lies in the fact that Namibia do not explicitly recognize or legalized same-sex marriages, but neither are same-sex marriages explicitly criminalized in Namibia.A case in question is of a Namibian, whom got married to a foreigner (in good faith), in a same-sex marriage, and wishes to settle in Namibia with the legally married spouse. The question now is whether the legally married same-sex partner qualifies for the same rights, protection and status, as stipulated in section 22(1)(c) which reads: is ordinarily resident in Namibia, whether before or after the commencement of this Act, by virtue of a marriage entered into with a person referred to in paragraph (a) in good faith as contemplated in Article 4(3) of the Namibian Constitution.In lieu of the above section of the Immigration Control Act, Act 7 of 1993, it is literally, and interpretively clear that any union conducted in good faith would permit the foreign spouse domicile rights in Namibia. It is also legally and constitutionally clear that no legislation in Namibia expressly ban or declared same-sex marriages undesirable or immoral, and therefore, no legal ground exist for a foreign partner, married to Namibian, in a same-sex marriage, not be granted rights and protection as stipulated in legislation and the supreme law, namely the Constitution.SILENT DISCRIMINATIONHuman rights activists, and human rights legal practitioners however argue that in respect of same-sex marriages and partnerships, there exist a “non-recognition and prohibition”. This “silent” non-recognition and prohibition violate the rights to equality and dignity of gay and lesbian persons in same sex unions. It also constitutes unfair discrimination on grounds of sexual orientation and their right to privacy.Those in Namibia opposing same-sex marriages argues that such marriages, or the recognition thereof, would threaten the traditional institution of marriage, which is a heterosexual union (between a man and a woman). They continue to argue that same-sex marriages or the recognition thereof would also be “in conflict with public opinion about morality and that it would give legal sanction to, and even encourage abnormal behaviour”.The mentioned views are in stark contradiction to the Constitution, and we have to keep in mind that public opinion does not determine constitutionality.In a concluded case, National Coalition for Gay and Lesbian Equality v Minister of Home Affairs, the Constitutional Court of South Africa ruled that “gays and lesbians in same–sex life partnership (marriages) are as capable as heterosexual spouses of expressing and sharing love in its manifold forms including affection. Friendship, eros and charity. . . They are likewise as capable of forming intimate permanent, committed, monogamous, loyal and enduring relationships, of furnishing emotional and spiritual support, and of providing physical care, financial support and assistance in running the common household. They have the same ability to establish a consortium omnis (capable of constituting family)”.This ruling of the Constitutional Court, though binding constitutionally, obviously would not be shared by those with fundamental and religious infused views about marriage. The court ruling obviously rejected the notion of “abnormality” concerning same-sex marriages, which unfortunately, is widespread in our society and the general public.COLLISION COURSEThe societal view and public opinion is on collision with the democratic values and norms of the Constitution, and as the Constitution is the supreme law, our societal and public opinions must be aligned to the democratic values of the Constitution.The right to family, equality and dignity enshrined in Chapter 3 of the Namibian Constitution which reads in Article 8(1) that “The dignity of all persons shall be inviolable” is a constitutional right which are not only enforceable by our courts, but must be respected and adhered to by all the citizens of the Republic of Namibia. In Article 14(1) our Constitution reads that: “Men and women of full age, without any limitations due to race, colour, ethnic origin, nationality, religion, creed or social or economic status shall have the right to marry and to found a family” which read with section 2(1)(c) of the Immigration Control Act that: Part VI of this Act shall not apply to:(a) a Namibian citizen(b) any person domiciled in Namibia who is not a person referred to in paragraph (a) or (f) of section 39(2)(c) any spouse or dependent child of a person referred to in paragraph (b), provided such spouse or child is not a person referred to in paragraph (d), (e), (f) or (g) of section 39(2).Both the Constitution and the mentioned Act guarantees the right, protection and legality for a foreign spouse, married to a Namibian in “good faith”, and irrespective of their “nationality” to be domiciled in Namibia. The foreign spouses must not only be granted the status enshrined in the Constitution, but the rights as per section 22(1)(c) must be conferred unto them. The foreign spouses, irrespective of their sexual orientation must also be afforded the same protection and status of spouses in heterosexual union.The language and linguistic expressions and usage within the legislation and the Constitution are free from sexist innuendos and therefore the rights and protection applies to all people irrespective of their sexual orientation, nationality or religion. The question that arises is whether the constitutional and legislative provisions apply to same-sex married couples.TEST CASEIn a reported article in the Namibian newspaper, 16 December 2017, it was stated that “the Namibian government stance on gay marriages is set to be tested in court”. The gist of the matter is that a same-sex married couple and their adopted son, applied to the Immigration Board for leave to stay permanently in Namibia as a family. They launched the legal action in a bid to have their marriage and residents rights recognised.According to the newspaper article, the couple got married in South Africa, and after two years of marriage decided to return and permanently relocate to the country of birth of one of the partners. The nine-year old boy was also legally adopted, as the South African partner had custody over the boy.The trouble for the couple started when they started with their application for domicile, as per section 22(1)(c). They therefore launched the legal action because they are of the opinion (and rightly so) that their rights as a family and as a married couple had been violated.The Constitutional Court in South Africa has recognised that the family is a social institution of vital importance, and that “families come in many shapes and sizes”. The court continues to warn that “in recognising the importance of family, we must take care not to entrench particular forms of family at the expense of other forms and that the legal conceptions of family life should change as social practices and traditions change”. It is further held that marriages between heterosexual partners “represents but one form of life long partnership (marriage) and that the narrowness of the past recognition of only heterosexual marriage excluded many other forms of relationships”.In a sworn statement the couple recounted how they were treated by officials at the Ministry of Home Affairs. A senior official commented “I have never met people like you in my life”, whereby the tirade of insults continues when the official commented that “I don't know anyone of your kind” and continue the degrading and humiliating interrogation by asking ”who is the husband and who is the wife in this relationship”. The action of the senior official within the Ministry of Home Affairs amounts to an unjustifiable violation of their right to equality and dignity.It is clear from the action of the official that his prejudice against the same-sex couple, is because of his narrow understanding of same-sex relationships.Our constitutional democracy promotes an open and democratic society based on human dignity, equality and freedom. It is from a legal and constitutional point of view “deeply demeaning” to be subjected to such treatment, if not criminal.

The right to family life (Part 1)

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The right to family life (Part 1)

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