Both traditional and social media in Namibia is currently awash with suggestions or calls that a national referendum be held with a view to expunging the right to equality and non-discrimination of LBGTG+ people from Namibia’s Constitution (NC).
It is imperative to understand the fact that the right to equality and non-discrimination of LGBTQ+ people is permanently included in our Constitution.
This right is premised on article 10 – read with articles 8, 13 and 14 – of the Constitution.
Articles 8, 10, 13 and 14 all form part of chapter 3 of the Constitution.
Chapter 3 is the shield which protects everyone, or all people in Namibia, without distinction of any kind – such as race, colour, sex, language, religion, political or other opinion; national or social origin, property, birth or other status, such as age, sexual orientation, and gender identity.
This right includes the right of LGBTQ+ people to sexual intercourse and marriage.
FOUNDING PRINCIPLES
Chapter 3 is specifically referred to in principle 5 of the eight principles upon which Namibia’s Constitution is founded.
Those principles, officially designated as ‘Principles for a Constitution for an Independent Namibia’ (Principles), were agreed upon – on 12 July 1982 – in Geneva, Switzerland, by all parties to the Namibian question during the struggle for independence. Please see them below.
The signatories to the said principles were Swapo, South Africa, the internal political parties (such as the DTA, NPSWA, CDA, Aktur, etc, which were opposed to Swapo), the Frontline States plus Nigeria and five nations (Britain, Canada, France, Germany and the US) making up the Western Five Contact Group on Namibia.
Three of the five nations are permanent members of the UN Security Council (UNSC).
Therefore it is important to note that the principles form part of UN Security Council Resolution 435 of 1978 in terms of which Namibian independence was achieved on 21 March 1990.
It is also important to note that all Security Council resolutions are binding on all countries and form part of General International Law (GIL), also known as Customary International Law (CIL). GIL or CIL is cast in stone.
HUMAN RIGHTS
Further, chapter 3 is consistent with the UN Universal Declaration of Human Rights (UDHR) of 1948.
UDHR is premised on articles 1(3) and 55 of the UN Charter.
Both the UN Charter and UDHR also form part of Customary International Law.
As such, chapter 3 of Namibia’s Constitution is part of General International Law as it is also a treaty among Namibian parties, which no party is allowed to violate.
This means that no Namibian party, including Swapo, can unilaterally repeal chapter 3 even if it has a two-thirds majority in parliament.
This explains why chapter 3 is cast in stone: It means it is permanent and impossible to repeal.
As a matter of fact, articles 131, 132(5) and 25(1)(a) of the Constitution specifically set this out.
CONSEQUENCES
The consequences of articles 25(1)(a),131 and 132(5) are such that Namibia’s parliament, Cabinet and judiciary are strictly prohibited from repealing chapter 3 in part or as a whole.
This also explains why the president of Namibia cannot, lawfully, make a proclamation calling for a referendum on chapter 3.
Chapter 3 is cast in stone.
- Phil ya Nangoloh is a human rights practitioner and founder and executive director of NamRights Inc.
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