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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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From left: Daniel Digashu, his husband, Johann Potgieter and their son, pictured alongside Anita Seiler-Lilles and Anette Seiler. (Photo courtesy of Equal Namibia)

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. 

“I feel like a huge weight has been lifted off of our shoulders. I feel that I can continue with life now, in a sense,” Digashu said. “I cannot explain just how relieved I am that we won’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.”

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. 

“We are married and we promised each other that we will stay together no matter what and that promise we’ve upheld through this fight for this recognition of our marriage,” Seiler said. “We would’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 Anita’s biggest wish and that’s my wish as well, and now this wish comes true. It’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 court’s decision. 

“The 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. “Instead, 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.”

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. 

“We 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. I’m glad that we did it, that we fought this fight,” 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. 

“It 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. It’s not about us, or just our families. It’s for absolutely everyone!” 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. 

“The Supreme Court really made a resounding decision. It just feels like our existence matters — that we belong and that our human dignity matters,” he said. “The Supreme Court … has upheld the most important thing today and that is the constitution’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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Intersex Kenyans see significant gains since landmark law took effect

MPs approved statute last year

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Kenya flag (Photo by rarrarorro/Bigstock)

The push for intersex people to enjoy equal rights as Kenya’s third sex has recorded significant gains since a landmark law took effect last July.

Intersex people arrested for breaking the law can now be presented in court as intersex, since prosecutors have adopted the special ‘I’ sex marker for the group in charging documents.

This addresses the problem of authorities identifying intersex people for trial that became public in 2006 when police officers could not tell the sex of a detainee they perceived as a man who had been accused of a violent robbery. They had strip-searched him. 

The gains noted in the latest report by the country’s Intersex Persons Implementation Coordination Committee also note the inclusion of intersex concepts in Kenya’s new education curriculum for awareness. 

The IPICC falls under the purview of Kenya’s National Commission on Human Rights

Intersex awareness in schools for recognition and capacity building in the future targets adolescents at the junior secondary level where they are educated on the reproductive system. 

Veronica Mwangi, the IPICC’s head of secretariat who spoke to Washington Blade, commended the Office of the Director of Public Prosecutions for introducing the ‘I’ sex marker for intersex people in charging documents. 

“We have made gains in the criminal justice but we should not go back to the tendencies where intersex persons only require a lot of attention when it comes to crime. It is a misconception that misses the map,” she said. 

Citing a proposed Intersex Persons Bill 2023 currently undergoing public comment before being presented for debate in Parliament, Mwangi believes it envisages more benefits to intersex people.

For instance, the bill proposes access to more comprehensive medical attention for intersex people during surgeries and expensive medical examinations like Karyotype, a DNA and hormonal composition test that costs between $900-$1,000. 

The bill would also require medical insurance providers to come up with an affordable, unique package that addresses the needs of intersex people by taking into account the reality of their lived experiences.

“The reality of the matter is you may give birth to an intersex child as a girl but later it turns out to be a boy. Hence the medical package that was given to the girl may not apply to the boy,” Mwangi said. 

She added the medical insurance policy should be capable of responding to such changes, since intersex people will always have medical needs that keep shifting. 

The bill would also allow intersex people to change their sex marker at any time to reflect their new status after undergoing a comprehensive medical examination and a medical certificate to prove it. The measure would also demand the government to recognize intersex people as a vulnerable group, such as those living with disabilities, women, young people and orphans, in order to more easily access social protection programs.

It would further require employers to consider intersex people for employment and the Kenya Examination Council to support the registration of intersex people’s’ academic documents that indicate their name has changed because of a legal sex change.

The Civil Registration Services, a government agency that documenting all births and deaths,  has already been working closely with IPICC to change names on the birth certificates of intersex people to reflect their correct sex for easier access to public services.  

Kenya became the first African country to grant equal rights and recognition to intersex people in 2022. It is also the first nation on the continent and the second in the world after Australia to count intersex people in a Census in 2019. 

The survey showed 1,524 Kenyans were intersex. 

After many years of marginalization and discrimination, the IPICC progress report states that several intersex people for the first time were involved in monitoring Kenya’s August 2022 general election as observers. Other intersex people subjected themselves to the electoral process to be nominated or elected as county assembly representatives, the lowest electoral position, including one in the Kenyan capital of Nairobi. 

“This was a bold move and a big achievement because, for the first time in Kenya, intersex persons came out and tested the waters in politics,” Mwangi said.

She cited stigma and fear among intersex people in presenting conflicting documents about their sex to the electoral commission for clearance as the cause of staying away from politics before the enactment of the law that recognizes them. Mwangi urged intersex people to come out and take advance of available opportunities and assistance, since most of them don’t and it becomes hard to reach them.

Since the landmark law came into force in July last year; several psychosocial support groups for intersex persons, their parents and caregivers have been established in the country to offer any necessary assistance that includes counselling. The IPICC has also created a database of intersex people, a text message service and a toll-free number to report cases of discrimination and to advocate on their behalf.

Oct. 26, 2022, also marked the first official event that commemorated Intersex Awareness Day in Kenya.

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Tanzanian man convicted of violating country’s sodomy law, sentenced to 30 years in prison

Muharami Hassan Nayonga arrested on April 13

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A Tanzanian man was last month sentenced to 30 years in prison after a court convicted him of violating the country’s sodomy law.

According to LGBT VOICE Tanzania, an LGBTQ and intersex rights organization, the Kilwa District Court sentenced Muharami Hassan Nayonga to 30 years in prison after it convicted him of violating Sections 154 and 157 of the country’s Penal Code that criminalize so-called unnatural offenses and “indecent practices between males.”

LGBT VOICE Tanzania said Nayonga was a security guard who lived in Masoko Ward. He was arrested on April 13 “after he used his phone to persuade a young man known as Zalafi Selemani to be intimate with him.”

“After the arrest, Muharami was examined by health professionals who found that he had engaged and engages in unnatural sex,” said LGBT VOICE Tanzania. “He was then brought to court and confessed his crimes where he was sentenced to 30 years in prison by the Resident Magistrate of the Court, Carolina Mtui, under case number 27 of 2023.”

LGBT VOICE Tanzania accused the country’s government of violating Nayonga’s human rights.

“Using Sections 154 and 157 of the Penal Code to persecute LGBTQIA people is a violation of human rights and a violation of the Constitution of the United Republic of Tanzania,” said LGBT VOICE Tanzania.

There have been consistent reports of discrimination and violence against LGBTQ and intersex Tanzanians in recent years. These include murder, assault, harassment and denial of basic rights and services.

The Health Ministry in 2016 prohibited community-based organizations from conducting outreach on HIV prevention to men who have sex with men and other key populations, based on the pretext that such organizations are engaged in the promotion of homosexuality. The ministry also closed drop-in centers that provided HIV testing and other services to key populations. International organizations ran many of these centers, and the government accused them of promoting homosexuality.

The ministry also banned the distribution of lubricant.

A crackdown against LGBTQ and intersex Tanzanians has been underway since 2018; with reports of raids, mass arrests, arbitrary detention and forced anal examinations.

According to Daniel Marari, a human rights lawyer and researcher, most Tanzanians strongly oppose LGBTQ and intersex rights on the assumption that non-traditional sexual orientation or gender identity is ungodly and immoral.

“While acknowledging the presence of LGBT people in the Tanzanian society, many anti-LGBT actors find it easy to demonize the issue as un-African, and a western invention as there is no such thing as a right to homosexuality. Those who are quick to condemn homosexuality hardly bother to reflect on the scientific aspects of sexual orientation or gender identity,” said Marari.

Marari also stressed LGBTQ and intersex Tanzanians are not asking for any special rights but basic human rights like every other citizen.

“What LGBT people are asking for is the fulfillment of the Constitutional promise of equality and there is nothing specifically western about that. Tanzania has ratified international and regional treaties guaranteeing basic rights including the right of minorities and vulnerable groups and it is time it lives up to its promises,” said Marari. “There is no doubt that the criminalization of private consensual homosexual acts between adults affects the private lives of LGBT people as they cannot express their sexual or gender identity without being liable to prosecution.” 

“Even where there is justification to restrict homosexual relationships so as to protect special groups like children or other vulnerable persons from sexual abuse, just as heterosexual relationships can be restricted on the same grounds, that argument would not justify all-inclusive criminal sanctions where persons involved are consenting adults,” added Marari.

Consensual same-sex sexual relations remain prohibited in Tanzania, and anyone convicted under the country’s sodomy law faces up to life in prison.

Daniel Itai is the Washington Blade’s Africa Correspondent.

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Eswatini Supreme Court hears LGBTQ rights case

Advocacy group hopes to legally register

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Members of the Eswatini Sexual and Gender Minorities, an LGBTQ and intersex rights group, after the Eswatini Supreme Court on May 5, 2023, heard arguments in their case in support of legally registering in the country. (Photo courtesy of Eswatini Sexual and Gender Minorities)

Eswatini Sexual and Gender Minorities, an LGBTQ and intersex rights group, is hopeful the country’s Registrar of Companies will allow it to register after the Supreme Court heard its case on May 5.

The Registrar of Companies in 2019 first denied Eswatini Sexual and Gender Minorities’s request on grounds the organization advocates for LGBTQ and intersex rights that are illegal. 

Consensual same-sex sexual activity is prohibited under common law, which criminalizes sodomy. The law, however, has never been enforced, but Emaswati who identify as LGBTQ or intersex still face discrimination.

Eswatini Sexual and Gender Minorities in 2020 approached the Supreme Court with the case. The Supreme Court dismissed it in 2022, but Eswatini Sexual and Gender Minorities appealed the ruling.

Closing arguments in the case took place on May 5.

“There is no law in Eswatini that prohibits the LGBTI+ community from identifying. Nothing is criminal about that. Don’t we have in this country an association of ex-prisoners? Isn’t the Registrar not scared that the ex-prisoners association includes rapists and murderers who will share ideas but is afraid of the LGBTI+ community? How is that association legal and ESGM is not? Homosexuality was not outlawed by the constitution and therefore the refusal to register ESGM is clearly a rights infringement,” said Eswatini Sexual and Gender Minorities in a statement.  

The Supreme Court has not said when it will issue its ruling.

Eswatini’s government has not forbidden Pride celebrations or obstructed their planning, even though it continues to oppose LGBTQ and intersex rights.

Rock of Hope, an LGBTQ and intersex rights organization, in 2018 organized Eswatini’s first Pride event.

The country is the continent’s last absolute monarchy, which has been under King Mswati III’s rule since 1986 when he was 18. Eswatini is deeply rooted in traditional and customary practices, which are mostly patriarchal, that do not include the LGBTQ and intersex community.

According to Gerbrandt van Heerden, an African researcher, historical evidence in many instances dispels the notion that LGBTQ and intersex people, as well as non-traditional gender expressions and identities, are alien to African culture.

“Whether it is the elite pushing the gay rights are un-African narrative out of pure ignorance, or whether power-hungry politicians dance to the tune of the people they govern in order to remain popular with the electorate, there is no question that categorizing same-sex attraction as a foreign concept and a form of neo-colonialism serves as a major obstacle to LGBTI rights on the continent,” said van Heerden.

Van Heerden also noted that in order for there to be less stigmatization of LGBTQ and intersex people, there should be more awareness of the LGBTQ and intersex community.

“Debunking the idea that LGBTI people are un-African is another powerful tool to further LGBTI rights on the continent. It all boils down to education,” said van Heerden. “Studies have shown that tolerance for gay people is highest among educated Africans. LGBTI people are among the most vilified groups on the continent today, but simply paging through the history.” 

Although the government and many Emaswati only see LGBTQ and intersex rights organizations as advocacy groups, they play a pivotal role in ensuring the community’s health. 

Eswatini Sexual and Gender Minorities and Rock of Hope have been working to ensure LGBTQ and intersex Emaswati receive access to health care without discrimination.

The Rock of Hope last month on Rainbow Health Day provided free medical care to the country’s LGBTQ and intersex community. This care included COVID-19 vaccinations, HIV testing and counseling, psycho social support, TB and STI screenings, free condoms and lubricant distribution, among other things.

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