John J. Fredericks writes:
Common law dictates that all people should be treated in a respectful and decent manner, and irrespective of how different they are to us, they must be accorded the same treatment that we wish to be treated with.
Furthermore, a diversified (culturally, economically, socially and politically) country like Namibia must embrace common values of “unity in diversity and also taking cognizance of our painful past of institutionalized brutality based on differences rather than our common identity.
According to Donald. L. Carveth “the evolution of the individual’s moral consciousness depends on his/her capacity to sympathize with the pain of the other, and therefore we as individuals and members of the broader Namibian society have a moral obligation towards those whom are denied and stripped of their constitutional and legally entitled rights, because of the unfounded, ungrounded and undefined fear of some towards others.
As mentioned earlier, common law dictates civility and a sense of respect and humanity that we must exercise towards each other in a spirit of Ubuntu and nation-building. The personal dignity we wish for ourselves, we must extend to others, and more so, it is the prime duty and responsibility of civil servants to do so.
It is my assessment of the mentioned case (Potgieter v Immigration Board) that the interpretation by immigration officials was to promote and protect conventional conception of family life. This obviously perpetuates a number of harmful and hurtful stereotypes about same-sex couples.
According to the Bill Of Rights Handbook, “the first of these stereotypes is that gay and lesbian relationships are exclusively sexual, with few or none of the family orientated characteristics of marriage – consortium, companionship, love, affection, support. The second stereotype is that same-sex unions do not qualify as family life, because they are incapable of procreating”. This is demeaning not only to same-sex couples, but also to heterosexual couples who, for whatever reason(s), do not have children.
The Constitutional Court found that “the message is that gays and lesbians lack the inherent humanity to have their families and family lives in such same-sex relationships respected or protected. It serves in addition to perpetuate and reinforce existing prejudices and stereotypes. This impact constitutes a crass, blunt, cruel and serious invasion of their dignity. This discrimination, based on sexual orientation, is severe, because no concern, let alone anything approaching equal concern, is shown for the particular sexual orientation of same-sex couples.”
This type of discrimination, like all other types and forms of discrimination, is unfair, and nothing can be argued in its defence.
The protection of the conventional family life is a very important objective, but there is no connection between this objective and excluding unconventional relationships from the benefits conferred by the constitution and legislation.
Most of international and South African court rulings pertaining to same-sex relationships and unions presaged a general challenge to the common law definition of marriage as a union of a man and a woman. The trouble with the common law definition of marriage is as Judge Madala put it in the Satchwell case “that while not everyone may choose to get married, only heterosexuals are given this choice. Denying this choice to same-sex couples, the Supreme Court of Appeal held in Fourie, is to deny them the option of ‘entering an honourable and profound estate that is adorned with social and legal recognition, rewarded with many privileges and secured by many automatic obligations. Moreover, this denial of opportunity sends a hurtful message of inferiority to same-sex couples telling them ’not only that their relationships and commitments and loving bonds are inferior, but that they themselves can never be fully part of the community of moral equals, that the Constitution promises to create for us all”.
In conclusion, while the Namibian society “might not necessarily approve of same-sex relationships, it does recognize that where such relationship has a degree of permanence and the manner in which the partners live together resembles for all intent and purposes . . . marriage between a husband and a wife, they could be considered members of a family as would be a husband and wife”. The subject of societal acceptance of same-sex marriages versus heterosexual marriages still needs to be embraced and to be deliberated on all platforms and social institutions. The churches, our educational institutions, and all other social institutions need to debate and discuss the topic without fear or prejudice.
In Namibia the law and the Constitution protects the rights of people with a different sexual orientation, but the implementation of the such rights and privileges are denied by prejudices based on fear and ignorance. We cannot allow constitutional rights to be violated, nor laws to be ignored simply because of an inability to understand and to interpret the law.
The right to family life, conventional or unconventional is to too an important fabric of society to be abused and violated by ignorance. The only constant is change, and therefore it is important that the dynamics of change be embraced.