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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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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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Nigeria

Gay couple beaten, paraded in public in Nigeria

Incident took place in Port Harcourt this week

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A gay couple was beaten and paraded in public this week because of their sexual orientation.

In a video clip shared by Portharcourt Specials on X, the couple who appeared half naked were being insulted and slapped on the back, with one showing trails of blood on his back. The incident took place in Rumuewhara in Port Harcourt.

Although consensual same-sex sexual relations are criminalized in Nigeria and punishable by death on some states, many Nigerians viewed the attack against the couple as distasteful, arguing rapist or pedophiles don’t face the same treatment.

“This is where you will see Nigerians very active on; on matters that donā€™t concern them because why is someoneā€™s sexual orientation your problem? We are well deserving of politicians that punish us well,” said Rinu Oduala, a human rights activist.

No Hate Network Nigeria, an LGBTQ rights organization, said the couple’s public victimization was a stark reminder of the rampant homophobia in the country.

“The brutal attack on the gay couple is appalling and unacceptable,” said the organization. “It’s a stark reminder of the rampant homophobia and intolerance in Nigeria.” 

“Such violence is often fueled by discriminatory laws, societal norms, and lack of education, this incident highlights the urgent need for increased advocacy, education, and protection for LGBTQI+ individuals,” added No Hate Network Nigeria.

No Hate Network Nigeria also highlighted the plight of LGBTQ people in the country who are constantly under attack due to current laws and cultural and religious norms.

“The LGBTQI+ community in Nigeria faces extreme risks, including violence, harassment, and persecution, the Same-Sex Marriage (Prohibition) Act of 2014 exacerbates these challenges, effectively criminalizing LGBTQI+ individuals,” said No Hate Network Nigeria. “Many live in fear, hiding their identities to avoid persecution, the community requires enhanced support, safe spaces, and robust advocacy to ensure their basic human rights.”

For many LGBTQ people in the country, remaining in the closet is the only way they can preserve their life. They often flee Nigeria if they decide to come out.

There is currently no appetite from any lawmakers to amend or repeal parts of Section 21 of theĀ Criminal Code Act (Penal Code) that are used to arrest, charge, and prosecute those who identify as LGBTQ.

In northern states where Sharia law is practiced, one who is found to identify as LGBTQ or is an advocate may face death by stoning.

Although not widely practiced, death by stoning is the preferred punishment in many of the northern states if a Sharia court finds someone guilty of engaging in consensual same-sex sexual relations. A number of local and international human rights organizations in recent years have condemned this punishment. It is, however, still enforced in some of these states.

No Hate Network Nigeria said amending parts of the Criminal Code Act and repealing the Same Sex (Prohibition) Act might give relief to LGBTQ people in the country.

“Repealing or amending discriminatory laws, like the Same-Sex Marriage (Prohibition) Act, implementing education and awareness campaigns to combat homophobia, establishing safe spaces, and support networks for LGBTQI+ individuals and strengthening law officialsā€™ response to hate crimes as well as holding perpetrators accountable, will aid in averting and combating attacks on LGBTQI+ individuals,” said No Hate Network Nigeria.

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Uganda

Uganda Human Rights Commission asks government to decriminalize homosexuality

Anti-Homosexuality Act took effect in 2023

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Ugandaā€™s state-funded human rights body has broken its silence on the queer communityā€™s rights by advocating for their protection amid the enacted Anti-Homosexuality Act that is currently under appeal at the Supreme Court.

The Uganda Human Rights Commission on Sept. 26 while defending LGBTQ rights asked President Yoweri Museveniā€™s government to decriminalize homosexuality and other ā€œvictimless crimes.ā€ 

ā€œCriminalizing such acts often results in unjust and disproportionate punishment, especially for vulnerable groups in our society,ā€ Mariam Wangadya, who chairs the commission, said. 

Wangadya, a lawyer and human rights advocate, spoke for the first time about the commission’s position on queer rights in Uganda since President Yoweri Museveni in May 2023 signed the Anti-Homosexuality Act.

She spoke during the annual stakeholders meeting for ACTV-Uganda, a rights organization that advocates against torture, gender-based violence, and other forms of violence, and has provided care to victims and survivors for 30 years with the commission’s support. 

Wangadya acknowledged ACTV-Ugandaā€™s important role in providing the commission with medical reports for torture cases to assist it in determining compensation for survivors of torture to rebuild their lives.    

ā€œOf the 939 cases currently pending a hearing before our tribunal, 50 percent of those are allegations of violation of the right to freedom from torture, inhuman and degrading treatment,ā€ she noted.  

Her sentiments on the commission’s stand on LGBTQ rights also come barely two weeks after holding talks with two rights groups: The Human Rights Awareness and Promotion Forum (HRAPF) and Support Initiative for People with Congenital Disorders (SIPD), an intersex lobby group, on Sept. 14.

The meeting between the commission, HRAPF, and SIPD, which also documents and publishes reports on queer rights abuses in Uganda, explored human rights violations based on sexual orientation, gender identity and expression, and sex characteristics.     

ā€œWe must ensure that every person in Uganda enjoys their human rights without discrimination,ā€ Wangadya said. 

The commission also noted that engaging the intersex lobby group was vital to address their ā€œoften-overlooked issues and rights.ā€ 

The Ugandan government has yet to recognize intersex people as a protected minority group, unlike in Kenya. This year’s national Census did not count them.

HRAPF Executive Director Adrian Jjuuko applauded the meeting with Wangadya as a ā€œprogressive stepā€ in defending the rights of the queer community and intersex people.

ā€œWe commend the commission on creating a space for dialogue on issues of criminalized minorities in Uganda,ā€ Jjuuko said. 

Wangadya held the first meeting with Jjuuko on Sept. 9. It focused on HRAPF’s periodical reports on violations against sexual minorities in Uganda.

Wangadya and Jjuuko during the meeting both agreed that all people deserve protection under the law and the commission has to protect everyone, regardless of their sexual orientation and gender identity.   

ā€œYou need to talk to the Judiciary, the police, and the director of Public Prosecutions. These are our major disturbing areas,ā€ Jjuuko said, accusing the three government agencies of undermining intersex and LGBTQ rights in the country.

Wangadya acknowledged the contribution of the three judicial agencies in protecting and upholding human rights, but noted that there is a need for working with Kenya, South Africa, and other countries to understand how they navigate LGBTQ and intersex legal issues.

ā€œKenya will be much better for benchmarking considering that in South Africa the constitution provides for that (queer rights.) Benchmarking from a country like Kenya with similar laws mayĀ be more helpful,ā€ she said. Ā Ā Ā 

The Wangadya also committed to tapping into HRAPFā€™s human rights strategies and experiences to improve the commission’s mechanisms.Ā 

HRAPF promotes respect for the rights of marginalized and minority groups in Uganda through advocacy, offering legal aid, and providing capacity building. Its latest August report on monthly advocacy, violence and other human rights abuses based on sexual orientation or gender identity since the Anti-Homosexuality Act took effect shows anti-LGBTQ violence remains rampant, while evictions and arrests continue to drop.

The report states that a total of 56 human rights violations were recorded in August, versus 72 cases in July. 

Of the 56 cases, 20 cases (35.7 percent) were based on sexual orientation or gender identity, versus 34 cases (41.2 percent) in July. The number of also reported victims also dropped from 40 people in July to 24 people in August. The 20 cases targeting LGBTQ people involved violence and threats (10), eviction from housing (nine), and one arrest.

Ugandaā€™s Women Human Rights Defenders Network welcomed the commission’s inaugural meetings with HRAPF and SIPD, and asked the state-funded rights body to continue holding regular dialogues to help ā€œcreate an enabling environment for SOGIESC (sexual orientation and gender identity and expression.)ā€ 

Wangadya’s comments coincided with a protest outside Uganda’s Permanent Mission to the U.N. in New York that a group of activists organized. 

The World Bank Group in August 2023 suspended new lending to Uganda in response to the Anti-Homosexuality Act. The activists who organized the protest demanded the World Bank not resume loans to the country.

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Africa

Anglican Church of Southern Africa rejects blessings for same-sex couples

South Africa’s Inclusive and Affirming Ministries criticized resolution

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The Anglican Church of Southern Africa has rejected a proposal that would have allowed bishops to bless couples in same-sex unions.

Archbishop Thabo Makgoba in April urged the Provincial Synod, the ACSA’s highest decision council, to consider offering blessings for couples in same-sex relationships.

The Church of England, which is the ACSA’s parent church, on Dec. 17, 2023, announced it would allow bishops to bless couples in same-sex unions. Since the resolution, however, several churches under the Church of England have not implemented it.

In response to proposals to the Synod from the Right Rev. Raphael Hess, bishop of Saldanha Bay in South Africa, who is the first within the ACSA to approve blessings for couples in same-sex unions after the Church of England’s resolution, and the Right Rev. Stephen Diseko, dean of the province and bishop of Matlosane, which is also in South Africa, the Provincial Synod in a Sept. 25 press release said marriage is between one man and one woman for life.

Makgoba before the Synod said the church needed a deeper understanding on the prospects of the LGBTQ community within the ACSA.

“Since Provincial Synod 1989, we have been trying to reconcile our understanding of the nature of God with how we minister to LGBTQI+ members in our pews,” he said. “Have we listened to and adequately sought reconciliation with one another on providing appropriate pastoral care to loving faithful couples in same-sex civil unions? What is this Provincial Synod, 35 years later, going to resolve beyond flowery words?”

“In my past 16 years, I have relied for guidance on such matters on, in no particular order, theological advisers, the Canon Law Council, the Southern African Anglican Theological Commission, Safe and Inclusive Church, the Anglican Board of Education, the Synod of Bishops, Scripture of courses, and on the lived experiences of our parishioners in such unions and relationships,” added Makgoba.

Inclusive and Affirming Ministries, a South African LGBTQ rights group, said it was deeply disappointed over the Provincial Synodā€™s decision.

“This decision, along with the rejection of a set of prayers drawn up by bishops for providing pastoral ministry to members in civil unions, feels like a missed opportunity to move toward a more inclusive and compassionate expression of faith,” said the organization.

Inclusive and Affirming Ministries also said the decision to withhold blessings and deny prayers of pastoral care to those in civil unions will further marginalize LGBTQ people.

“Through our work, we also know that religious-instigated forms of hostility meted out against LGBTIQ+ people have been the root cause of the perpetuation of violence, hate speech, and hate crimes,” said the group. “The Synodā€™s choice to move away from this compassionate path suggests that much work remains to be done in the journey toward full inclusion.”

Inclusive and Affirming Ministries nevertheless commended Hess and Diseko for bringing their proposal to the Synod.

“The theological insights offered by Bishop Hess and Bishop Diseko during the debates were grounded in love, respect for conscience, and the universal recognition of human dignity,” said the group. “We remain hopeful and committed to fostering spaces where LGBTIQ+ individuals feel affirmed, supported, and welcomed in their faith communities. We will continue to advocate for pastoral care and recognition of the diversity of sexual orientation within the church and other faith communities.”

Four countries ā€” Eswatini, Lesotho, Namibia, and South Africa ā€” and St. Helena, a British overseas territory, comprise ACSA with more than three million parishioners.

South Africa and St. Helena are the only jurisdictions within the ACSA that fully recognize the rights of LGBTQ people.

The Namibian Supreme Court in 2023Ā ruledĀ the country must recognize same-sex marriages legally performed elsewhere. The country’s government in July appealed a ruling that overturned an apartheid-era sodomy law.

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