Recognition of same-sex unions in Namibia

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Same-sex unions are currently not recognized in Namibia. Several court cases seeking recognition of same-sex marriages performed abroad have been filed with the High Court, and await a decision.

History[]

Background[]

The Marriage Act (Act 25 of 1961), enacted by the Parliament of South Africa when Namibia was still South West Africa, does not explicitly prohibit the recognition of same-sex marriages; neither, does it explicitly define marriage.[1] However, the law has "heteronormative underpinnings" and has been interpreted not to recognise same-sex unions.[2]

Likewise, the Constitution of Namibia does not explicitly permit nor prohibit same-sex marriages. Article 14(2) states:

Marriage shall be entered into only with the free and full consent of the intending spouses.[a]

Article 14(1) states that men and women of full age may enter into marriage irrespective of their race, colour, religion, ethnicity, creed, social or economic status, or nationality. Furthermore, men and women are entitled to the same rights and obligations, whether during the marriage or at its dissociation. Article 14(3) places the family as the "natural and fundamental unit of society", entitled to special protection by the State.[9]

The Ombudsman of Namibia, John Walters, expressed his support for same-sex marriage in August 2016.[10][11]

Court cases[]

Same-sex sexual activity legal
  Same-sex marriage
  No recognition of same-sex couples
Same-sex sexual activity illegal
  Not enforced or unclear
  Penalty
  Life in prison
  Death penalty

In the late 90s, Elizabeth Khaxas and her German partner Erna Elizabeth Frank sued to have their relationship recognised. Namibian law grants residency and citizenship to foreign nationals who marry Namibian citizens. However, as the couple's same-sex relationship is not recognised by law, Frank could not obtain permanent residency or citizenship. She applied for a permanent residence permit with the Immigration Selection Board twice, in 1996 and 1997. The Board rejected the application both times. The High Court ruled in favor of the couple in 1998, directing the Board to issue a residence permit to Frank. The Board appealed the decision to the Supreme Court. In Chairperson of the Immigration Selection Board v Frank and Another on 5 March 2001, the Supreme Court held that:

Homosexual relationship[s], whether between men and men and women and women, clearly fall outside the scope and intent of Article 14 [of the Constitution of Namibia].[12]

While the court ruled that Frank should be granted a permanent residence permit, which she received a year later, it did not rule in favour of recognising same-sex relationships by law.[13][14]

2017–present[]

In December 2017, Namibian citizen Johann Potgieter and his South African husband Daniel Digashu filed a lawsuit to have their marriage, conducted in 2015 in South Africa, recognised in Namibia. Digashu is not recognised by the state as Potgieter's spouse, causing several legal and bureaucratic problems as he cannot receive permanent residency or citizenship, as is given to married opposite-sex partners. The couple filed their case with the High Court.[15][14] In January 2018, officials granted the couple's application to allow Digashu and their son to enter Namibia, as the High Court continues to review their case.[13]

In 2018, a second case was brought to the High Court by lawyer Anita Grobler from Otjiwarongo and her South African spouse Susan Jacobs, together for over 25 years, in an attempt to have their 2009 South African marriage recognized in Namibia and to obtain residency rights for Jacobs.[13] The couple named the Ministry of Home Affairs and Immigration as defendants in their lawsuit.[16] The Immigration Selection Board decided on 25 July 2019 to approve Jacobs' application for a permanent residence permit. She has made the required payment of N$18,000 for the permit, but as of October 2019 it had still not been issued to her.[17] The couple has agreed to consider a possible settlement agreement and the withdrawal of their lawsuit once the residence permit is issued.[18]

A third case was filed in 2018 by Anette Seiler-Lilles and her German wife Anita Seiler-Lilles, who have been together since 1998. The couple seeks to have their 2017 German marriage recognized in Namibia.[18]

In June 2019, Judge President Petrus Damaseb directed that a full bench of three judges should be designated to hear all pending cases.[13] In September 2019, Potgieter and Digashu agreed to consolidate their court case with Seiler-Lilles.[18][2] Judges Hannelie Prinsloo, Orben Sibeya and Esi Schimming-Chase of the High Court of Namibia heard oral arguments in the combined court case on 20 May 2021. The couples are asking the court to recognise their marriages performed outside of Namibia. Senior counsel Raymond Heathcote, representing the plaintiffs, argued that the case does not seek to legalise same-sex marriage in Namibia but seeks to recognise marriages performed elsewhere. He argued that the Constitution gives men and women the right to marry without limitation due to their social status. Heathcote argued that sexual orientation is included under the concepts of sex and social status, two grounds on which the Constitution forbids all discrimination. A judgment is expected on 20 January 2022.[19]

See also[]

Notes[]

  1. ^ In Oshiwambo: Mohombo otamu iwa ashike nemanguluko noneudeko Ia wana kovalihomboli.[3]
    In Khoekhoegowab: ǃGameb ge ǃnorasa tsî ǀoasa mā-ams ǃgame ra ra ǀkhākha xū hâs ǀkha ǀgui a dīhe ǁkhā.[4]
    In Afrikaans: Die huwelik mag alleenlik bevestig word tussen vrye, voorgenome gades wat albei toestemming verleen.[5]
    In Otjiherero: Orukupo maru kutwa nouyara nondjiviro okuura yovakupasane.[6]
    In RuKwangali: Nonkwara ngadi kara ko papulisiro lyokuzulilira lyopamanguruko meharo lyava vana hara kulikwara.[7]
    In siLozi: Linyalo lika ezahala feela kataato ye lukuluhile hala' batu baba nyalana.[8]
    In German: Eine Ehe darf nur bei freier und uneingeschränkter Willenseinigung der künftigen Ehegatten geschlossen werden.
    In Tswana: Go tla tsenwa fela mo nyalanong ka tetla e e gololosegileng le e e tletseng ya bobedi jo bo ikaelelang go nyalana.

References[]

  1. ^ "Marriage Act 25 of 1961 (SA)" (PDF). laws.parliament.na. Archived (PDF) from the original on 15 February 2020. Retrieved 10 February 2020.
  2. ^ Jump up to: a b "Govt sticks to stance on same-sex marriage". Namibian. 3 October 2019. Archived from the original on 15 February 2020. Retrieved 10 February 2020.
  3. ^ "Efinamhango loRepublika yaNamibia". Konrad-Adenauer Stiftung (in Kuanyama). Archived from the original on 29 April 2021. Retrieved 13 February 2020.
  4. ^ "Namibiab di Republiki di !Huǂhanub". Ministry of Information and Communication Technology (in Nama). 2016. Archived from the original on 29 April 2021. Retrieved 13 February 2020.
  5. ^ "Grondwet van Namibië". Konrad-Adenauer Stiftung (in Afrikaans). Archived from the original on 29 April 2021. Retrieved 13 February 2020.
  6. ^ "Ongunḓeveta ya Namibia". Ministry of Information and Communication Technology (in Herero). 2017. Archived from the original on 29 April 2021. Retrieved 13 February 2020.
  7. ^ "Ediveta lyo Republika za Namibia". Ministry of Information and Communication Technology (in kwn). 2016. Archived from the original on 29 April 2021. Retrieved 13 February 2020.CS1 maint: unrecognized language (link)
  8. ^ "Mutomo-Puso wa Naha ya Namibia". Ministry of Information and Communication Technology (in Lozi). 2016. Archived from the original on 29 April 2021. Retrieved 13 February 2020.
  9. ^ "Namibian Constitution" (PDF). lac.org.na. Archived (PDF) from the original on 15 February 2020. Retrieved 10 February 2020.
  10. ^ "Namibia's ombudsman calls for same-sex marriage amidst UN report furore". MambaOnline - Gay South Africa online. 23 August 2016.
  11. ^ Let gays be – Walters The Namibian
  12. ^ Strydom, Johan; Teek, Pio; O'Linn, Bryan (26 June 2019). "Appeal Judgment: Chairperson of the Immigration Selection Board v Frank and Another". Supreme Court of Namibia. Archived from the original on 15 February 2020. Retrieved 10 February 2020.
  13. ^ Jump up to: a b c d "Walters backs LGBT marriage". Namibian Sun. 10 July 2019. Archived from the original on 19 July 2019. Retrieved 10 February 2020.
  14. ^ Jump up to: a b Igual, Roberto (15 December 2017). "Namibia: Gay couple sue govt for same-sex marriage and family rights". Mambaonline. Archived from the original on 3 October 2018. Retrieved 10 February 2020.
  15. ^ Namibia: Govt Sued Over Gay Marriage Archived 16 February 2018 at the Wayback Machine AllAfrica.com, 14 December 2017
  16. ^ "Govt stance on same-sex marriage faces challenge". Namibian. 26 June 2019. Archived from the original on 15 February 2020. Retrieved 10 February 2020.
  17. ^ "Immigration drags feet". Namibian Sun. 4 October 2019. Archived from the original on 15 February 2020. Retrieved 10 February 2020.
  18. ^ Jump up to: a b c "Same-sex couples join forces". Namibian Sun. 5 September 2019. Archived from the original on 15 February 2020. Retrieved 10 February 2020.
  19. ^ "Landmark test for stance against gay marriage". The Namibian. 21 May 2021.
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