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Namibia Supreme Court rules government must recognize same-sex marriages from abroad

Plaintiff couples sought spousal immigration rights

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(Bigstock photo)

A landmark ruling the Supreme Court of Namibia issued on Tuesday ruled that same-sex marriages conducted outside the southern African country should be recognized by the Namibian government. 

Two same-sex couples have emerged victorious in their fight for the recognition of their marriages conducted outside Namibia in a ruling that paves the way for equal rights and spousal immigration benefits for same-sex couples in the country.

The joint cases, initially brought before the court in March, involved South African national Daniel Digashu who is married to Namibian citizen Johann Potgieter, and German national Anita Seiler-Lilles, who is married to Namibian citizen Anette Seiler. 

The couples aimed to access essential spousal immigration rights, including permanent residence and employment authorization.

Both couples expressed relief following the ruling. 

ā€œI feel like a huge weight has been lifted off of our shoulders. I feel that I can continue with life now, in a sense,ā€ Digashu said. ā€œI cannot explain just how relieved I am that we wonā€™t have to make plans to leave. Now we can stop for a moment and breathe, and take things easy and just know that we are home and there is no potential of being forced to leave.ā€

For her part, Seiler said after a sleepless night in anticipation of the ruling, she and her wife look forward to celebrating a dream come true. 

ā€œWe are married and we promised each other that we will stay together no matter what and that promise weā€™ve upheld through this fight for this recognition of our marriage,” Seiler said. ā€œWe wouldā€™ve stayed together no matter what but we can stay together here in this beautiful country and we can make it our home country. That was Anitaā€™s biggest wish and thatā€™s my wish as well, and now this wish comes true. Itā€™s so incredible.”

The Supreme Court’s ruling challenged a previous precedent set by the Immigration Selection Board. While acknowledging the binding nature of the precedent, the court asserted that it can depart from its own decisions if they are proven to be clearly wrong.

The court ruled that the Home Affairs and Immigration Ministry’s refusal to recognize same-sex marriages validly concluded outside Namibia violates the constitutional rights of the affected parties.

Furthermore, the court emphasized that the rights to dignity and equality are interconnected, and the denial of recognition for same-sex marriages undermines these fundamental principles. It reaffirmed the principle that if a marriage is lawfully concluded in accordance with the requirements of a foreign jurisdiction, it should be recognized in Namibia.

This ruling represents a significant milestone in the fight for LGBTQ and intersex rights in Namibia. By expanding the interpretation of the term “spouse” in the Immigration Control Act to include same-sex spouses legally married in other countries, the court has taken a crucial step toward achieving equality and inclusivity.

One of the five judges who heard the two appeals dissented from the majority ruling. 

He argued that Namibia is under no obligation to recognize marriages that are inconsistent with its policies and laws, emphasizing the traditional understanding of marriage and the protection of heteronormative family life.

The dissenting opinion highlights the ongoing divisions and complexities surrounding the issue of marriage equality in the country. While it underscores the need for continued dialogue and debate, the majority decision in favor of recognizing same-sex marriages highlights the importance of constitutional rights and the principle of equality. 

Southern African Litigation Center Executive Director Anneke Meerkotter commended the courtā€™s decision. 

ā€œThe Namibian Supreme Court has set an important example, interpreting legislation in accordance with the core principles of constitutional interpretation and independent adjudication, thus avoiding irrelevant considerations relating to public opinion and unfounded allegations raised by the government about public policy,” Meerkotter said. ā€œInstead, the court steered the argument back to the history of discrimination in Africa and the necessary constitutional reforms that emphasized transition to dignity and equality without discrimination.ā€

Speaking on what the ruling means for the LGBTQ and intersex community in Namibia, Seiler said it provides hope and inspiration not only to the couples involved but also to the broader community in Namibia and on the continent. 

ā€œWe know that we fought this battle not only for us. In the beginning we were fighting it for us, but then we realized it’s not only for us, it’s for other people as well. Iā€™m glad that we did it, that we fought this fight,ā€ she said. 

Both Seiler and Digashu said the support of the LGBTQ and intersex community and its allies has been a pillar of strength over the 6-year battle with the courts. 

ā€œIt has always been about the community because we deserve to have it all without being put down or being told this is not allowed. So, I think this is a big win for the community as a whole. Itā€™s not about us, or just our families. Itā€™s for absolutely everyone!ā€ Digashu said.

Omar van Reenen, co-founder of Equal Namibia, a youth-led social movement for equality, said the ruling has strengthened the promise of equality and freedom from discrimination in the country. 

ā€œThe Supreme Court really made a resounding decision. It just feels like our existence matters ā€” that we belong and that our human dignity matters,” he said. ā€œThe Supreme Court … has upheld the most important thing today and that is the constitutionā€™s promise that everyone is equal before the law and that the rights enshrined in our preamble reign supreme, and equality prevails.” 

As the Supreme Court is the highest court in Namibia, decisions made in this court are binding on all other courts in the country unless it is reversed by the Supreme Court itself or is contradicted if Parliament passes a law that is enacted.

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Africa

Ugandan activists appeal ruling that upheld Anti-Homosexuality Act

Country’s Constitutional Court refused to ‘nullify’ law

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(Image by rarrarorro/Bigstock)

Twenty-two LGBTQ activists in Uganda have appealed this month’s ruling that upheld the country’s Anti-Homosexuality Act.

The Constitutional Court on April 3 refused to “nullify the Anti-Homosexuality Act in its totality.”

President Yoweri Museveni last May signed the law, which contains a death penalty provision for “aggravated homosexuality.”

The U.S. subsequently imposed visa restrictions on Ugandan officials and removed the country from a program that allows sub-Saharan African countries to trade duty-free with the U.S. The World Bank Group also announced the suspension of new loans to Uganda.

Media reports indicate Sexual Minorities Uganda Executive Director Frank Mugisha and Jacqueline Kasha Nabagesara are among the activists who filed the appeal.

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Africa

Congolese lawmaker introduces anti-homosexuality bill

Constant Mutamba’s measure seen as distraction from country’s problems

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Congolese MP Constant Mutamba (Photo courtesy of Mutamba's X account)

A member of the Democratic Republic of Congo’s National Assembly who is a leader of the country’s opposition party has introduced a bill that would criminalize LGBTQ people.

Part of the bill that Constant Mutamba, leader of the Dynamic Progressive Revolutionary Opposition platform, has put forth states anyone who “commits a homosexual act (including acts and gestures) will be liable to a 5- or 10-year prison sentence.”

The country in recent years has seen government leaders and civic society target the community with anti-LGBTQ sentiments.

The Superior Council for Audiovisual and Communication, Media Regulatory AuthorityĀ  last JuneĀ cautioned the media against showing LGBTQ-specific conversations. Several activists have criticized Mutamba’s bill, saying it seeks to move attention away from governance, service delivery and other pertinent issues in the country.

Sirius Tekasala, a human rights activist, said a person’s sexual orientation does not impact issues of governance.

“The proposed bill does not go in the direction of improving the socio-economic life of the Congolese people,” said Tekasala. “It’s not homosexuals who prevent you from doing your job well or from breathing. This is a violation of human rights.”

Mbuela Mbadu DieudonnƩ, a social analyst and trade unionist, said the bill is just a way of deviating people from the pertinent issues.

“He should suggest how to get the Congolese people out of this precariousness of life which is growing on a daily basis,” said DieudonnĆ©. “When we don’t know the real problems of the Congolese people, he sets himself up as the great director of scenes to distract the Congolese people.”

Many Congolese, however, seem to support the bill and have applauded Mutamba for drafting it.

This is not the first time that such kind of a bill has been drafted.

An anti-homosexuality bill introduced in 2010 would have sentenced people who engage in consensual same-sex sexual relations to between three and five years in prison. The measure, however, did not become law.

Mutamba’s bill, however, may pass with Uganda’s Anti-Homosexuality Act in effect. The country’s Constitutional Court earlier this month upheld it. Burundi, Tanzania and other neighboring countries are also considering similar measures.

Many Congolese people view LGBTQ rights as a Western phenomenon that disregards their religious and cultural beliefs. LGBTQ Congolese are among those who have fled the country and sought refuge in the Kakuma refugee camp in Kenya and other places.

Consensual same-sex sexual relations are not criminalized in the Democratic Republic of Congo, but Congolese law does not recognize same-sex marriages.

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Africa

Prominent transgender woman in Nigeria arrested, charged with defacing currency

Authorities say Idris Okuneye, known as Bobrisky, flaunted money

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Bobrisky's arrest has sparked concern among Nigerian activists. (Photos courtesy of Bobrisky's Facebook page)

Nigeria’s Economic and Financial Crimes Commission’s decision to arrest a well-known transgender woman over the practice of flaunting money has sparked questions among several human rights activists.

Idris Okuneye, who is known as Bobrisky, was first arrested last Wednesday.

Justice Abimbola Awogboro of the Lagos Federal High Court on April 5 charged her with four counts of mutilating N490,000 (roughly $375.)

The EFCC alleges Bobrinsky between last July and August flaunted N50,000 (roughly $36) during a social event and N400,000 ($306) at another gathering last month. Bobrinsky has been charged with violating section 21(1) of the Central Bank Act of 2007.

“The Lagos Zonal EFCC, on Friday, April 5, 2024, secured the conviction of Idris Okuneye, (Bobrisky), before Justice Abimbola Awogboro sitting at the Federal High Court, Ikoyi, Lagos over mutilation of the Naira notes,” reads the EFCC complaint that misgenders Bobrisky. “He was arraigned on Friday on a four-count charge bordering on mutilation of the Naira notes to the tune of N490,000.”

“Justice Awogboro, thereafter, ruled, that upon the admission of guilt by the defendant, and following the evidence tendered, the defendant is declared guilty as charged,” adds the statement.

The EFCC said after listening to both parties, Awogboro delayed his ruling and also ordered that Bobrisky remain in EFCC custody. Activist Felix Abayomi said the EFCC was simply using Bobrisky as a scapegoat due to the fact that she is a vulnerable member of the society.

“Discrimination in the name of implementing a pick and choose law! Why go after someone that is a vulnerable member of our society? Someone that is clearly dealing and coping with stigmatization of her lifestyle choices which is innate. Using her as a scapegoat is uncalled for,” said Abayomi. “How does spraying the Naira that is cultural to us as a people ever even become a financial crime? People who commit economic and financial crimes against us as a people and against our nation state are sitting comfortably in the hollows of our legislative chambers and power.”

Chidi Odinkalu, the former chair of the National Human Rights Commission, said the arrest was not about the mutilation of the Naira notes, but about Bobrisky’s gender identity.

“The EFCC should be ashamed of themselves,” said Odinkalu. “The power of arrest and prosecution is a public trust that should not be weaponized for the persecution of those whom they don’t like. It is either the EFCC is evidently idle or this is a clear abuse of power.” 

EFCC spokesperson Dele Oyewale said Odinkalu’s statements were reckless.

“The commission views such commentaries from Odinkalu as unbecoming of a former head of a major government agency,” said Oyewale. “Okuneye was arrested and arraigned by the commission on the basis of clear cases of abuse of the Naira to which he has pleaded guilty.”

“Odinkalu has a right to free speech as a Nigerian, but such a right should be exercised with decorum and responsibility,” added Oyewale. “The commission would not hesitate to take appropriate legal actions against such uncouth commentaries against its lawful mandate by anyone. Odinkalu is warned and advised to ventilate his rascally opinions more responsibly in future situations.” 

Bobrisky is one of the few individuals on the African continent who has publicly discussed their gender transition.

Ever since she started to publicly show her transition, several Nigerian political pundits have been calling for her arrest. There are no laws that specifically target trans Nigerians, but the Same-Sex Marriage Act criminalizes same-sex marriages and prohibits the public display of same-sex relationships with up to 14 years in prison.

In states where Sharia law is practiced, those found engaging in same-sex sexual activities can be sentenced to death by stoning. Even those who identify as trans can receive 50 lashes or more.

Update: Awogboro on Friday sentenced Bobrisky to six months in prison without the option of paying a fine. Reports indicate authorities will send her to a men’s prison.

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