WHEN IS THE LAW WHAT IT IS, AND WHEN IS IT WHAT IT OUGHT TO BE? – A TALE OF TWO JUDGMENTS

WHEN IS THE LAW WHAT IT IS, AND WHEN IS IT WHAT IT OUGHT TO BE? – A TALE OF TWO JUDGMENTS

The morning of 16 May 2023 was no ordinary morning. For me, it was a busy one because I had conciliation at the office of the Labour Commissioner, but it got a lot busier when I got out to find social
media abuzz with news from the courts. I quickly found out that the Supreme Court had handed down judgment in Digashu v GRN, Seiler-Lilles v GRN (SA 7-2022 and SA 6-2022) [2023] NASC, and the High Court also handed down judgment in S v Madisia (CC 08-2022) [2023] NAHCMD 267. Browsing through social media revealed that people reacted to these two judgments with mixed feelings. Some people were happy, some were angry, some were sad, some were confused, some had questions, some had answers, and some were neutral. Like the colours of a rainbow, the reactions were
distinguishably numerous, but one thing was clear to me, and that is, the two judgments hit fundamental aspects of society, love, freedom, religion, and life. At the centre lay the law, which is said to be what it is, and not what it ought to be, and worse, not understood by many.

Realizing the sheer impact these two judgments had, and would have on our society, I posted on my status that ‘The best thing to do as a Lawyer is to reserve your comment’. This was immediately followed by comments and questions from friends and colleagues. I wisecracked to friends that, ‘Emotions are very high. These are two cases on the two ends of society – love, and life.’ I am certain my friends did not understand what I meant so I want to elaborate on that today. But before I do that, I must put a disclaimer: I am a proponent of law and everything it entails. I do not subscribe to any particular field of law, i.e., human rights, but to everything that has to do with law. Therefore, the comments I make herein are in no way meant to advance a particular field of law or position, but to clarify what the law says regarding these matters of public interest. My views herein do not constitute legal advice.

To start with, I wish to refer to my earlier article titled “Law is, and should be used as a tool to shape society” (https://consultfasz.com/law-is-and-should-be-used-as-a-tool-to-shape-society/), where I made the following observation:

“My focus in this opinion piece is on the fact that the law has the power to shape society. Thus, when the constitutional drafters decided to insert Articles 140 and Article 66 in the Constitution,
they basically set the tone for how a typical Namibian should behave, in compliance or non- compliance with the law, and how he/she/it would be dealt with, in enforcing such laws. This undoubtedly shapes a society in a certain way, as behavior becomes habits, habits become lifestyles and lifestyles become customs, and eventually the very things that a community of people is known for.”

And further that:

“…the law which continued to be in force after independence has over the past 32 years influenced the way we behave, and they will continue influencing our conduct for as long as they remain in force.”

The next relevant question is, what laws have been in force since independence, which shaped our society to date? And what laws remain in force to shape our society going forward? In respect of murder and or culpable homicide, the common law position is settled in respect of what constitutes murder and what needs to be proved by the prosecutors to succeed with such charges (S v Madisia). In respect of the issue of sexual orientation, same-sex marriages/relations, or LGBTQI+ rights (Digashu), the following passage from my article above is relevant:

“… In 2001, the Supreme Court held in Chairperson of the Immigration Selection Board v Frank that same-sex relationships are not legal in Namibia; that the right to family entrenched in Article 14 of the Constitution also did not include same-sex relationships. But, in Digashu v Government of the Republic of Namibia and Seiler-Lilles v Government of the Republic of Namibia (20 January 2022), three judges of the High Court stated that it was time to recognize that homosexuality is part and parcel of the fabric of society and that persons in homosexual relationships are worthy of being afforded the same rights as other citizens. In conclusion, the court held in the above matter that ‘in a functioning democracy, founded on a history such as our own, coming from a system of unreasonable and irrational discrimination, to obtain freedom and independence, and then to continue to irrationally and unjustifiably take away human rights of another segment of Namibian citizenry….amount[s] to cherry-picking of human rights, and deciding whose rights are more “human”, and to be protected, more than others. This is not what our democracy was founded upon.”

We now know that despite the above observations by the full bench of the High Court, they could not grant the applicants the relief sought as they were bound by the decision in Frank which decision is now the subject matter of the latest Supreme Court judgment. Before I delve further into the latest judgment, let me refer to another earlier article of mine to put things in context.

On 9 March 2023, my article titled "Litigation on LGBTQ Rights Gains Momentum” was published on Africa Legal (https://www.africa-legal.com/news-detail/litigation-on-lgbtq-rights-gains-momentum/). In that article, my general sentiment was that it was about time the Supreme Court dealt with the issue of
LGBTQI+ rights in Namibia as it was presented with three chances (cases) to either confirm the position in Frank or reject it. It appears that the same sentiment was shared by the minority as Mainga JA puts it in his dissenting judgment:

“[184] On the distinction made by the majority between this appeal and in Frank, it would mean that this is the first case of its kind to be heard in this Court. The appeal relates to a complex area of considerable social, political, and religious controversy where our society is widely divided. This Court should have been very cautious in making sweeping interpretations at this stage of the evolving right of same-sex relationships. The right has gained momentum of late, those that are associated with the right, against all odds, are ready or have come out in the open to declare who they are. That appropriate moment seeking to establish the right is nigh. (My own
emphasis).

However, it would appear that it is Parliament that must act with urgency, according to the learned Judge:

“[185] Parliament cannot keep quiet for too long on the issue – it will have to regulate the issue in one way or another. The claim to same-sex relationships is now here and Parliament which is best placed to assess and respond to that need should arise and act in terms of its Constitutional mandate.”

There is merit to what the minority says about Parliament and the public seems to be in on it. A quick scan of social media and other news would reveal calls for Parliament to focus on constructive debates and ‘make laws’ than their usual way of conducting business which is often characterized by drama. This is the call I made in my article “Law is, and should be used as a tool to shape society”, that:

“Therefore, those who are in the business of making laws must be mindful that they have a bigger responsibility.” A bigger responsibility in the sense that the laws passed will shape the next generation of Namibians. Lack of laws, on the converse, breeds problems for the current generation. I am mindful that we live in a constitutional democracy and not a parliamentary sovereign. This means that parliamentarians cannot just wake up and make laws (as was the case with the Apartheid government). There is a process to follow. But whatever that process is, it must be urgent and responsive to the need to legislate on obviously burning issues such as the one currently under discussion, with all stakeholders involved. The courts will, but only to that extent, assist in interpreting existing statutory laws. They cannot make ‘new laws’ or set legal positions on issues that are not before them. Therefore, where an issue appears to have been dealt with by the courts in the eyes of the public, it is often not the case. This is apparent from the confusion in the air that the Supreme Court ruled that same-sex marriages can be validly concluded in Namibia, or that they are recognised across the board.

This is exactly why the majority warned in Digashu, that:

“[77] The majority in Frank, unfortunately, failed to heed the very sound salutary practicearticulated by this Court in Kauesa v Minister of Home Affairs & others 1995 NR (SC) 175 at 184A-B that a court ought to decide no more than what is absolutely necessary for the decision of a case, particularly in constitutional matters.” (My own emphasis).

A reader must also have this in mind when studying judgments in order to understand what the judgment is all about (where the court actually took heed of the abovementioned salutary practice). It would be dangerous to read into a judgment what the court did not deal with and/or decide. Misunderstanding the law can cause chaos, while the law operates to create order. The law is what it is, and not what it ought to be. There are feelings, wishes, and aspirations, and then there is law. I submit that the law is what it is when it is expressly stipulated, and it is what it ought to be when it is interpreted to accommodate the wishes and aspirations of people.

But what exactly did the courts say in these two judgments then?

In S v Madisia, the following:

“[101] It appears to me that the circumstances that led to the death of the deceased could be described as a freak accident and not something accused 1 could likely have foreseen. Her reaction thereto appears to be reasonable in the circumstances and, as admitted, prompted the making of wrong decisions to keep it a secret and to rather dispose of the body. When applying the principles set out in Blom to these facts, I am not convinced that the only inference reasonably to be drawn is that accused 1 unlawfully and intentionally killed the deceased. Thus, I am not persuaded that the accused persons’ actions and intent after the passing of the deceased translates into proof that accused 1 acted with intent to kill.’

[102] On the same basis, neither does the evidence support a finding that accused 1 should reasonably have foreseen the possibility of the deceased’s ensuing death when pushing her away when bitten on her finger. Her actions could therefore neither be found to have been negligent. As regards the competent verdicts to murder, there is no evidence from which it may be inferred that the accused either acted with the intent to cause grievous bodily harm or common assault.

[103] In the absence of evidence to the contrary, it seems to me that this is an instance where there is a reasonable possibility that the version of accused 1 may be substantially true and that the state failed to prove beyond reasonable doubt the charge of murder against accused 1, or any of the competent verdicts as provided for in s 258 of the CPA.

Therefore, the High Court did not say that there was no life lost or that there is no one to blame for it. It said that, based on the evidence before it:

“[101] … the circumstances that led to the death of the deceased could be described as a freak accident and not something accused 1 could likely have foreseen. Her reaction thereto appears to be reasonable in the circumstances and, as admitted, prompted the making of wrong decisions to keep it a secret and to rather dispose of the body. …”

It has been argued that accused 1 should have been convicted because she caused the delay in finding the body, which led to the cause of death not being determined. To this, the court stated that:

“[94] Although a court in principle may convict an accused for murder in circumstances where the cause of death is undetermined, the elements of the offense must still be proved to wit: (a) causing the death (b) of another person (c) unlawfully and (d) intentionally.” These elements were not present and based on that, the court could not convict, the law being what it is.

In Digashu, the following:

“Held that the well-established general principle of common law that if a marriage is duly concluded in accordance with the statutory requirements for a valid marriage in a foreign jurisdiction, it falls to be recognized in Namibia. That principle finds application to these matters.

[128] We accordingly conclude that the approach of the Ministry to exclude spouses, including Mr. Digashu and Ms. Seiler-Lilles, in a validly concluded same-sex marriage from the purview of s 2(1) of the Act infringes both their interrelated rights to dignity and equality.

[129] They are spouses for the purpose of s 2(1)(c) of the Act, given their validly concluded marriages in South Africa and Germany respectively. The term ‘spouse’ in s 2(1)(c) is thus to be interpreted to include same-sex spouses lawfully married in another country. It is not necessary for an order to the effect that those words are to be read into the term ‘spouse’ because the interpretation to be given to the term ‘spouse’ by this Court in complying with the Constitution is
to include same-sex spouses lawfully married in another country.”

At page 55 the majority sets the record straight that:

“[134] It also remains for us to point out that the legal consequences of marriages are manifold and multi-faceted and are addressed in a wide range of legislation. This judgment only addresses the recognition of spouses for the purpose of section 2(1)(c) of the Act and is to be confined to that issue. The precise contours of constitutional protection which may or may not arise in other aspects or incidents of marriage must await determination when those issues are raised.” (My own emphasis).

Therefore, the only change that this supreme court judgment has ushered in is the legal position that a marriage concluded between same-sex people in accordance with the statutory requirements for a valid marriage in a foreign country must be recognized for purposes of section 2(1)(c) of the Immigration Control Act. Nothing more, nothing less.

Now, as alluded to at the beginning, the reactions of people have been different. Some took to social media to celebrate a milestone in their fight for recognition, while others started a WhatsApp group against same-sex marriages in Namibia. Sadly, we also witnessed the reaction of the family of the late Shanon Ndatega Wasserfall which I personally understand. But in the end, we are left with these judgments and no matter what our reaction is, they will stand until set aside by a competent court. This then begs the question of what can be done, if any.

In respect of S v Madisia, the option of appealing to the Supreme Court is always open for the State once the matter is concluded in the High Court (sentencing is due in June 2023). In Digashu, things are a bit complicated. Firstly, one needs to convince him/herself that there is a need to do anything at this stage, legally speaking. If there is a need, you will have to convince your lawyer(s) that there is a case to pursue, financially speaking. Once that is done, my learned colleagues will have to commence litigation which would see the Supreme Court reverse its own decision, because the doctrine of precedent and Article 81 of the Constitution requires and bind not only subordinate courts but also the Supreme Court to follow its own decisions. The courts, including the Supreme Court, can only depart from their own previous decisions only when satisfied that those decisions were clearly wrong.

I will refrain from going deeper into these options lest I be perceived to be giving legal advice, but I will say this in conclusion: Law is what it is, and it affects all of us, negatively or positively – it shapes how we behave in compliance or in non-compliance with it. Invest time to understand exactly what the judges said in these two judgments before taking action to avoid causing the very thing which the law seeks to avoid; chaos.

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Fedden Mainga Mukwata – Legal Pundit