{"id":47426,"date":"2023-06-19T17:15:16","date_gmt":"2023-06-19T17:15:16","guid":{"rendered":"https:\/\/www.africa-press.net\/namibia\/all-news\/swapo-cc-directs-government-to-amend-immigration-control-act"},"modified":"2023-06-19T17:54:04","modified_gmt":"2023-06-19T17:54:04","slug":"swapo-cc-directs-government-to-amend-immigration-control-act","status":"publish","type":"post","link":"https:\/\/www.africa-press.net\/namibia\/all-news\/swapo-cc-directs-government-to-amend-immigration-control-act","title":{"rendered":"Swapo CC Directs Government to Amend Immigration Control Act"},"content":{"rendered":"

Africa-Press – Namibia. <\/strong><\/span>The Swapo CC has instructed the government to introduce a law compliant definition of spouse into the Immigraion Control Act. This will in effect nullify the Supreme Court ruling which recognized same-sex marriages.<\/p>\n

Swapo also condemned immoral practices that are not in line with Namibian laws and public policy.<\/p>\n

Below is the Swapo Party\u2019s full statement:<\/p>\n

Office of the Secretary General<\/p>\n

SWAPO PARTY PRESS STATEMENT ON THE OUTCOME OF THE EXTRAORDINARY MEETING OF ITS CENTRAL COMMITTEE WHICH WAS HELD ON SATURDAY, 17<\/p>\n

JUNE 2023 ON THE RECENT SUPREME COURT JUDGMENT ON THE \u201cRECOGNITION\u201d OF SAME-SEX MARRIAGE FOR PURPOSES OF SECTION 2(1 )(C) OF THE IMMIGRATION CONTROL ACT, WHICH WAS DELIVERED ON 16 MAY 2023<\/p>\n

1. Our Constitution proclaims that all power shall vest in the people of Namibia who shall exercise their sovereignty through the democratic institutions of the State. The SWAPO Party, being a mass-based political party born and steeled in the crucible of a popular and heroic struggle for our independence is founded on the principles of democracy, solidarity, freedom, social justice and progress. These principles on which SWAPO Party is founded had propelled it over the years to transform the Namibian society and to establish, sustain and maintain a peaceful and democratic society. Therefore, it is not surprising that whenever called upon by its members and the public, it is both politically and constitutionally enjoined to respond in a positive and impactful manner. That being the case, when its members and the public voice their concerns on issues of public interest, it is enjoined and obligated to take necessary measures and steps.<\/p>\n

2. Over the last 33 years the SWAPO Party had notably, through its government taken necessary steps in order not only to make new laws but also to repeal and modify existing laws that do not serve the public interest. To this effect, various common law principles\/rules and a number of pre-independence Acts of Parliament had been repealed or modified in terms of Article 66(2) and Article 140(1 ), respectively, of the Constitution.<\/p>\n

3. The Supreme Court of Namibia, in two consolidated appeals namely Seiler-Lilies and Digashu v Minister of Home Affairs under case numbers SA 6\/2022, delivered its judgment on 16 May 2023. The two appeals in which Namibian nationals were married to foreign nationals in same-sex marriages concluded in countries which recognise same-sex marriage, namely South Africa and Germany, the court had to determine, amongst others, whether or not the Ministry of Home Affairs was correct in its refusal to recognise the two foreign nationals in the aforestated same-sex marriages validly married in a foreign country for purposes of qualifying as spouses of the Namibian same-sex partners as contemplated under section 2(1 )(c) of the Immigration Control Act, 7 of 1993 which exempts spouses and dependents of Namibian nationals for necessary permits under Chapter 6 of the Immigration Control Act for purposes of entering into and residing in Namibia. The Supreme Court had to decide whether or not the Ministry of Home Affairs was correct in its refusal to recognise the two foreign nationals as \u201cspouses\u201d to their Namibian same\u00adsex partners (who were validly married in countries that recognise same-sex marriages) for immigration purposes under section 2(1)(c) of the Immigration Control Act, 7 of 1993.<\/p>\n

4. The Supreme Court found that the exclusion of foreign partners who are validly married to Namibian citizens in same-sex marriages recognised in foreign countries, from the ambit and meaning of the term \u201cSPOUSE\u201d in section 2(1 )(c) of the Immigration Control Act, infringed those foreign nationals\u2019 rights to dignity and equality under the Namibian Constitution. The above finding was made after the Supreme Court concluded that in terms of Namibian law the validity of a marriage is determined in accordance with the legal requirements of the country where the marriage was concluded. This legal position, according to the Supreme Court, is in accordance with an applicable common law principle, in Latin called Lex loci Lo clebrationis matrimonium, which the Court found remains part of Namibian law.<\/p>\n

5. The appellants, both in the High Court and the Supreme Court, challenged the Ministry\u2019s approach and its refusal to recognise them as spouses of Namibian nationals in marriages validly concluded in countries that recognise same-sex marriages.<\/p>\n

6. The SWAPO Party government, both in the High Court where it succeeded, and in the Supreme Court (where it lost), in accordance with the SWAPO Party long\u00adstanding policy on marriage and family, opposed the two cases. Government, in the main, contended that when regard is had to the Namibian common law, various Acts of Parliament and Article 14 of the Namibian Constitution, same-sex marriages are not recognised. In particular, government highlighted, in the Supreme Court, the fact although the two foreign nationals were married to Namibian citizens in countries which recognise same-sex marriages, they (the foreign nationals) could not qualify as \u201cspouses\u201d in terms of section 2(1)(c) of the Immigration Control Act as such qualification would be inconsistent with Namibian laws and policies.<\/p>\n

7. Unfortunately, and yet disconcertingly, notwithstanding the government\u2019s spirited opposition to the recognition of those marriages, the Supreme Court per majority judgment, with one Judge dissenting, ruled against government that the Ministry\u2019s approach to exclude foreign nationals validly married to Namibians in same-sex marriages from the term \u201cspouse\u201d under section 2(1 )(c) of the Immigration Control Act, infringes their rights.<\/p>\n

8. The Supreme Court therefore in the end made an order that both Mr Digashu and Ms Seiler-Lilles must be regarded as \u201cspouses\u201d to their Namibian same-sex partners only for the purposes of section 2(1 )(c) of the Immigration Control Act.<\/p>\n

9. Because of a great deal of what appears to be confusion over the scope and ambit of the Supreme Court\u2019s finding, it is important that we inform our members and the public that the Supreme Court itself, under paragraph 134 of its judgment, pointed out that in view of the fact that marriages are manifold and multi-facetb~d. its judgment only deals with and is only applicable to the recognition of foreign spouses in validly concluded same-sex marriages for purposes of section 2(1 )(c) of the Immigration Control Act.<\/p>\n

10. The Central Committee observed that the judgment, when properly considered and read, does not generally recognise same-sex marriages in Namibia as some seek to portray. It is of limited scope and effect.<\/p>\n

11. The Central Committee, in the aftermath of the Supreme Court judgment, as the highest organ of authority between Congresses, and in its customary vigilance over topical issues affecting the nation, immediately decided to discuss and interrogate the nature, import and effect of the judgment. After the Central Committee extensively discussed the judgment and its effect on the society as a whole, it hereby expresses its grave concern and disappointment over the judgment and the uncertainty and confusion it creates, notwithstanding its confined scope.<\/p>\n

12. The Central Committee observed and reiterated that, in accordance with an accepted maxim of international law and as per the sentiments of the Supreme Court in another judgment [Minister of Home Affairs and Immigration v Holtman and Others 2020 (2) NR 303 (SC)], Namibia has the power, as inherent in its sovereignty and essential to its self-preservation and security of its people, to forbid and regulate the entrance of foreigners within its domain on such conditions as the Executive and Legislature (not Courts) could prescribe. In this respect the Central Committee further observed that there are several laws in Namibia. overwhelmingly confirming that marriage as contemplated under Article 14(1 ) is a marriage between a man and a woman. This legislative policy and constitutional state of affairs also confirm the SWAPO Party marriage policy both before and after independence to this date. The Central Committee recalled that the right for men and women of full age to marry and found a family was deliberately and consciously, at the instance of and insistence by SWAPO Party during deliberations at the Constituent Assembly, included in the Constitution as it represented its marriage and family policy as codified on 1 December 1977.<\/p>\n

13. The Central Committee, notwithstanding its concern and disappointment over the judgment, reiterates and reaffirms the SWAPO Party\u2019s commitment to the constitutional provisions under Article 78(3), that is, non-interference with the Judiciary and the protection of the dignity and effectiveness of Courts.<\/p>\n

14. The Central Committee, having carefully considered and reflected on the matter, therefore resolved to direct government to immediately take executive and legislative steps aimed at introducing a Namibian law-compliant definition of the word \u201cspouse\u201d into the Immigration Control Act, which definition will inevitably modify (not repeal) the common law principle applied by the Supreme Court only for purposes of section 2(1 )(c) of the Act.<\/p>\n

15. Finally, while the SWAPO Party government takes the above directed statutory remedial steps, the SWAPO Party hereby strongly condemns and repudiates all kinds of immoral and indecent acts and other associated acts that are either inconsistent with Namibian laws or against public policy. In this respect, SWAPO Party directs its government to enforce all laws in force that are aimed at preventing and combatting such acts.<\/p>\n\r\n