Recognition of same-sex unions in Namibia

Same-sex unions are currently not recognized in Namibia. Several court cases on the issue 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.[lower-alpha 1]

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]

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. Frank 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 Frank a residence permit. 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].[10]

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.[11][12]

2017–present

In December 2017, Namibian citizen Johann Potgieter and his South African husband Daniel Digashu filed a lawsuit against the Namibian Government to have their 2015 South African marriage 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.[13][12] In January 2018, the couple's application to allow Digashu and their son to enter Namibia was granted, as the High Court continues to review their case.[11]

In 2018, a second case was brought to the High Court by Namibian-born lawyer Anita Grobler and her South African spouse Susan Jacobs, who have been together in a relationship for over 25 years, in an attempt to have their 2009 South African marriage recognized in Namibia and to obtain residency rights for Jacobs.[11] The couple named the Ministry of Home Affairs and Immigration as defendants in their lawsuit.[14] 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.[15] The couple has agreed to consider a possible settlement agreement and the withdrawal of their lawsuit once the residence permit is issued.[16]

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.[16]

In June 2019, Judge President Petrus Damaseb directed that a full bench of three judges should be designated to hear all pending cases.[11] In September 2019, Potgieter and Digashu agreed to consolidate their court case with that of Seiler-Lilles.[16] They argue that the lack of gendered terms in Namibian law requires the state to recognise their marriages.[2]

See also

• LGBT rights in Namibia
• Recognition of same-sex unions in Africa
• Same-sex union court cases

Notes

1. In Oshiwambo: Mohombo otamu iwa ashike nemanguluko noneudeko Ia wana kovalihomboli.[3]
   In Afrikaans: Die huwelik mag alleenlik bevestig word tussen vrye, voorgenome gades wat albei toestemming verleen.[4]
   In Khoekhoegowab: ǃGameb ge ǃnorasa tsî ǀoasa mā-ams ǃgame ra ra ǀkhākha xū hâs ǀkha ǀgui a dīhe ǁkhā.[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]

References

1. "Marriage Act 25 of 1961 (SA)" (PDF). laws.parliament.na.
2. "Govt sticks to stance on same-sex marriage". Namibian. 3 October 2019.
3. "Efinamhango loRepublika yaNamibia". Konrad-Adenauer Stiftung (in Kuanyama).
4. "Grondwet van Namibië". Konrad-Adenauer Stiftung (in Afrikaans).
5. "Namibiab di Republiki di !Huǂhanub". Ministry of Information and Communication Technology (in Nama). 2016.
6. "Ongunḓeveta ya Namibia". Ministry of Information and Communication Technology (in Herero). 2017.
7. "Ediveta lyo Republika za Namibia". Ministry of Information and Communication Technology (in Kwangali). 2016.CS1 maint: unrecognized language (link)
8. "Mutomo-Puso wa Naha ya Namibia". Ministry of Information and Communication Technology (in Lozi). 2016.
9. "Namibian Constitution" (PDF). lac.org.na.
10. 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.
11. "Walters backs LGBT marriage". Namibian Sun. 10 July 2019.
12. Igual, Roberto (15 December 2017). "Namibia: Gay couple sue govt for same-sex marriage and family rights". Mambaonline.
13. Namibia: Govt Sued Over Gay Marriage AllAfrica.com, 14 December 2017
14. "Govt stance on same-sex marriage faces challenge". Namibian. 26 June 2019.
15. "Immigration drags feet". Namibian Sun. 4 October 2019.
16. "Same-sex couples join forces". Namibian Sun. 5 September 2019.