Monday, 04 September 2023

Namibia High Court Had To Say No To Same-Sex Marriages

The High Court of Namibia's recent ruling against recognizing same-sex marriages within the country has once again highlighted the ongoing struggle for LGBTQ+ rights in the region.

This decision has compounded legal barriers and social challenges for same-sex couples in Namibia, who are still fighting for marriage equality and equal rights and benefits compared to their heterosexual counterparts. The implications of this judgment go beyond marriage, affecting areas such as inheritance, joint property ownership, and parental rights, among others. The ruling has reignited conversations on progressive legal reforms to guarantee equal rights for all citizens, irrespective of their sexual orientation.

The situation in Africa continues to be a struggle for LGBTQ+ people. Though there have been some victories, like the ones in Botswana two weeks ago, it doesn't look like Namibia will improve soon.

Namibia's high court was blocked by precedent

Two bi-national couples had filed a complaint with the High Court of Namibia seeking recognition for their same-sex unions performed abroad. But, even if the court ruled against the recognition of their marriages, the judges were in favor of marriage equality. They were actually blocked by a previous ruling that states that same-sex marriages should be illegal decades ago.

Chairperson of the Immigration Selection Board vs. Frank

Let's take a quick look back to understand.

Erna Elizabeth Frank was born in Germany and moved to Namibia in 1990, where she met the woman who would become her wife, Elizabeth Khaxas. The two women later got married in Germany, but live daily in Namibia.

Erna's problems began when she was refused a renewal of her residence permit in 1997.

The couple realized that this was discrimination based on sexual orientation because the letter from their immigration department clearly mentioned they were in a relationship.

When Erna and her wife filed a complaint, they ended up in front of the Supreme Court. The court ruled that same-sex relationships are illegal throughout Namibia, and their case has set a precedent against same-sex couples seeking recognition, which is unfortunate.

Two same-sex couples vs. the immigration department

Daniel Digashu and Johan Potgieter. Anette Seiler-Lilles and Anita Seiler-Lilles.

Matsobane Daniel Digashu, Johan Potgieter, Anita Seiler-Lilles, and Anette Seiler-Lilles(credit: Jana-Mari Smith)

So when Matsobane Daniel Digashu and Johan Potgieter, who married in South Africa, and when Anette Seiler-Lilles and Anita Seiler-Lilles, who married in Germany, found themselves before the High Court of Namibia after being denied work and residency permits clearly because they're in a same-sex marriage, they ran into this old ruling that says marriage equality is illegal in the country.

The judge in charge of ruling on their cases, Hannelie Prinsloo, acknowledged that there had been discrimination but said she could do nothing because "only the Supreme Court can correct itself." She called for a change of the constitution, so it reflects social reality.

It will be interesting to see how this will evolve. The two couples may appeal soon, so there is still hope!