Commentary
Same-sex couples seek relationship recognition in Namibia
Supreme Court in May ruled country must recognize overseas marriages
BY BRADLEY FORTUIN AND THABO BUTHELEZI | On May 16, 2023, The Supreme Court of Namibia ruled that Namibia’s immigration laws must recognize same-sex marriages validly concluded outside Namibia, setting aside the High Court decision of Jan. 20, 2022. This case’s decision will significantly impact LGBTIQ+ rights and advocacy in Namibia and the region.
Background
In August 2017, Daniel Digashu, a South African Citizen and Johann Potgieter, a Namibian citizen, approached the High Court of Namibia after the Ministry of Home Affairs and Immigration denied Digashu, a South African citizen, a work permit based on their same-sex marital status.
Similarly, Namibian-born Anete Seiler and German-born Anita Seiler-Lilles approached the High Court of Namibia after Anita was denied permanent residence based on their marital status.
The High Court, comprised of three judges, dismissed their applications. The High Court held that the Constitution of Namibia prohibited discrimination based on sexual orientation; however, it could not grant the couples’ applications because of a 2001 judgement by the Supreme Court of Namibia in Immigration Selection Board v Frank, which refused to recognize the rights of same-sex partners under the Immigration Act. The High Court criticized the discrimination that was leveled at the applicants and the earlier judgement of the Supreme Court; however, it felt bound by the Supreme Court decision.
Supreme Court
The appellants argued that the facts in the Frank case differed in that their relationship was not recognized in terms of the law. The applicants in the Frank case were in a long-term committed relationship, whereas in the case of Digashu and Seiller-Lilles, the appellants’ relationships were valid regarding the law of the countries they were respectively concluded in.
The right to dignity
The Supreme Court of Namibia’s landmark decision to support the right to dignity for same-sex couples was a significant moment in the ongoing battle for equal rights. The Supreme Court held that denying the recognition of the Digashu and Seiller-Lilles’ respective marriages violated the right to human dignity. The court stated that the Constitution of Namibia guarantees the right to dignity to its people and does not exclude based on one’s sexual orientation, gender identity and expression. The court added that the fact that this is outlined in Article 8 of the constitution meant that it is constitutionally binding and relates to the protection of other rights.
The Supreme Court’s decision was based on the principle that all Namibians have the right to human dignity under the law. This was also rooted in the idea that marriage is a fundamental right essential to the pursuit of happiness. Although same-sex marriages cannot be legally performed in Namibia, the court held that denying the recognition of same-sex marriages concluded lawfully outside the country violated the applicant’s constitutional rights and was a form of discrimination that had no place in modern society. The Supreme Court’s decision was a watershed moment that signaled a new era of acceptance and equality for Namibia’s LGBTIQ+ community.
The right to equality:
The Supreme Court further affirmed the right to equality for LGBTIQ+ persons. It held that the ministry’s approach infringed on the right to equality. The court declared that “spouse,” in the context of the law, includes same-sex couples. The right to equality is a fundamental human right, ensuring everyone is treated equally under the law. It is a cornerstone of democracy and is essential for protecting human dignity. In Namibia, the right to equality is enshrined in the constitution. However, despite these legal protections, discrimination still exists in many forms and affects various marginalized and vulnerable groups, such as same-sex couples.
The Supreme Court has played a critical role in interpreting and enforcing the right to equality in the Digashu, Seillers-Lilles judgment. The court interpreted the law and applied it to the specifics of this case to ensure that applicants are treated equally, giving precedence for future equality matters. The Supreme Court’s reasoning for granting equality is based on several fundamental principles. Firstly, the court recognizes everyone is entitled to the same legal protections. No one should be discriminated against based on their race, gender, sexual orientation, gender identity or any other characteristic.
The court further recognizes that stigma and discrimination can take many forms and are influenced by one’s particular characteristics and identity. This is evident in cases when a law or policy appears neutral but disproportionately impacts a specific group, as can be seen in the Digashu, Seiller-Lilles matters where the ministry denied the applicants the right to equality based on their same-sex marriage status.
The court also recognizes that the right to equality is about protecting individual rights and promoting social cohesion. Stigma and discrimination can lead to social fragmentation and undermine the stability of society. By promoting equality, the court is helping to build a more cohesive, diverse, and stable community. This is also based on a deep understanding and interpretation of the principles of democracy and respect for human rights. The court proclaimed, “the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family as indispensable for freedom, justice and peace.”
Public opinion
The court noted that the majority often influences public opinion, and elected officials express these views in Parliament. The court said it was the duty of the court to fulfill the constitutional rights of all people, including the minority groups such as LGBTIQ+ people. It is the duty of the courts to ensure, independently, that such groups are protected from stigma and discrimination and are afforded their constitutional rights. If the courts only relied on the majority’s opinions, there would be inconsistencies in who can and cannot be protected and recognized under the law.
Recognition of same-sex families
The State argued that in line with the doctrine of precedent, the term “family” does not include homosexual marriages and that in terms of the act and the constitution, marriage is a union between a man and a woman. They further argued that sexual orientation is not listed as grounds for prohibited discrimination and that equality before the law does not mean equality for each person’s relationships.
The Supreme Court stated, in its decision, however, that in addition to “spouse” not being defined as either a man or woman, neither is marriage. It held that any marriage that is legally concluded outside Namibia must be recognized in accordance with the law.
The Supreme Court noted that the facts in Frank were indeed different from the facts in the Appeals and that the statements made by the court in that case that “equality before the law for each person does not mean equality before the law for each person’s relationship,” were incompatible with the right to equality, and that it also fails to take into account the human worth and dignity of all human beings including those in same-sex relationships, which is at the core of the equality clause. It further held that the general principle of common law that if a marriage is concluded under the legal requirements for a valid marriage in a foreign country, it falls to be recognized in Namibia and that that principle applied in this matter. The court held that the ministry should have recognized the appellants’ respective marriages and that Mr. Digashu and Ms. Seiller-Lilles are to be regarded as spouses for purposes of the law.
The court went on to State that the ministry, by excluding a spouse in a same-sex marriage from inclusion within the term of “spouse,” infringed on their right to dignity and equality.
In a dissenting judgment by Justice Mainga JA, the judge states that the court had overstepped its bounds and had effectively redefined marriage. The judge further notes that the majority decision attacked traditional norms and values and threatened to undermine the institution of marriage itself. The dissenting judgement shows that there may be resistance to equal treatment of LGBTIQ+ persons. The silver lining is that four other justices recognized that the constitutional values of Namibia promote and protect the rights of queer persons.
Developments since the judgment
Following the passing of the judgment by the Supreme Court, there were emerging backlash from some members of the public and politicians. July 11, 2023, the National Assembly of Namibia passed a private member’s bill which aimed to redefine the term spouse and amends the Marriage Act. The bill was introduced with reference to Articles 81 and 45 of the Namibian Constitution to “contradict a decision of the Supreme Court of Namibia.” The proposed bill contradicts the Supreme Court’s Digashu, Seillers-Lilles’ decision. The bill was also discussed and approved by the National Council of Namibia and was sent to the President for assent but was sent back for further consultation.
The bill proposes that no marriage between persons of the same sex shall be recognized as a valid marriage in Namibia and that anyone in a same-sex marriage will not be regarded as spouse for purposes of any law in Namibia. The Marriage Act amendment states that marriage “means a legal union entered into between persons of opposite sex.”
Importance of this case
The judgment has taken a significant step forward by recognizing same-sex marriages conducted legally outside Namibia. This decision will significantly impact various aspects of the law and advocacy, including human rights, family law and equality. This decision is a milestone towards equality and human dignity. This decision positively impacts the future of the LGBTIQ+ community and society. It has the potential to promote acceptance and diversity and pave the way for a more inclusive and equal Namibian society. It further reflects the changing attitudes and values of the Namibian society towards LGBTIQ+ people. This decision is a significant step towards recognizing LGBTIQ rights in Africa, particularly considering the current regression and extreme anti-LGBTIQ sentiment being seen elsewhere.
The High Court and Supreme Court sentiments, respectively, show that there has been a change in approach around LGBTIQ+ rights within the judiciary since the 2001 judgement. In affirming that the terms spouse and family in terms of the act include persons in same-sex relationships, the court has moved from its previous jurisprudence to a jurisprudence that interpreted equality in a purposive right-giving manner.
It will also positively impact the mental health and well-being of LGBTIQ+ people, who have long faced stigma, discrimination and prejudice. The judgment is a blueprint for the role of the Courts in upholding fundamental human rights and promoting equality. The courts have played a crucial role in the fight for LGBTIQ+ rights and recognition, and this ruling will serve as a precedent for future equality cases and help shape the country’s laws, policies and practices towards equality and human rights.
Namibia still criminalizes consensual same-sex sexual activities between people of the same gender in terms of its Roman-Dutch common law, with the Criminal Procedure Act outlining procedures for punishment, although such prosecutions are rare.
Access more information on the case here.
Bradley Fortuin is the LGBTIQ+ Program Officer at the Southern Africa Litigation Center and a social justice activist.
Thabo Buthelezi is a researcher at the Southern Africa Litigation Center and a human rights activist.
Commentary
What LGBTQ veterans are building after ‘Don’t Ask, Don’t Tell’
DADT repeal took effect on Sept. 20, 2011. Trans servicemember ban reinstated
Fifteen years ago this month, the repeal of “Don’t Ask, Don’t Tell” took effect. At the time, the importance of the change was obvious: gay, lesbian, and bisexual Americans would no longer have to hide who they were to wear the uniform. What was harder to see was what would follow: a generation of LGBTQ veterans able to carry their service openly into American civic life.
Earlier this month, Alaska state Rep. Andrew Gray, an Army veteran, stood before the Anchorage Assembly and asked the city to recognize Sept. 20 as LGBTQ Veterans Day.
His former command sergeant major, Mike Grunst, followed him to the microphone. A 35-year veteran who had served in combat, Grunst called troops who had served while hiding who they were “the bravest I have ever served with.”
Then Denise Sudbeck stepped forward. A Vietnam-era Navy veteran, she thanked the country for the privilege of serving and asked that the next generation have the same chance.
The Assembly approved the recognition.
Nothing about the scene required a new vocabulary. A veteran made a request of his community. A commander vouched for those who served beside him. Another veteran asked that younger Americans inherit the opportunity she valued. They entered the civic record simply as veterans.
That identity can do more than win recognition.
When federal policy abruptly ended the careers of transgender servicemembers this year, veterans and servicemembers in California began asking a practical question: What happens when those Americans come home?
Republican Assemblyman Jeff Gonzalez, a Marine combat veteran, began one hearing with questions about transgender military service. He listened as veterans explained how the military handles medical care and deployment case by case.
Then the discussion turned to separation.
“I don’t wanna see any veteran homeless,” Gonzalez said. Before the hearing ended, he was asking: “How can I help? How can I understand? How can I be a good advocate?”
The legislation that followed would provide housing, employment and transition assistance to discharged servicemembers. Republican state Sen. Shannon Grove spoke for it. The Senate passed it 32 to 0.
Americans have plainly not settled their disagreements over transgender people. Nor should military service be a prerequisite for rights that belong to every citizen.
But military service creates relationships that are difficult to reduce to the abstractions of the culture war. Before a legislature, “the transgender issue” can become a veteran who deployed, an officer who led troops, or the person who once stood beside you.
The political question changes because the human relationship has already changed.
The pattern is beginning to appear across the country. Kansas is among the states recognizing LGBTQ Veterans Day for the first time this year. New York and Virginia are pursuing broader state-level programs for LGBTQ veterans.
Sept. 20 is deliberate. On that day in 2011, “Don’t Ask, Don’t Tell” ended.
We usually remember repeal for what LGBTQ Americans gained: the ability to serve openly. Fifteen years later, we can also see what the country gained.
A gay veteran can stand before his local government beside the commander who once led him. A transgender servicemember can sit before a legislator who begins with doubts and ends by asking how he can help. A veteran from an older generation can ask her neighbors to give those who follow her the same chance to serve.
This is citizenship in practice.
The enduring legacy of “Don’t Ask, Don’t Tell” repeal is not only that Americans were finally allowed to serve openly. It is also what they can now build after coming home.
Commentary
Anti-science, anti-LGBTQ movements go hand in hand
HHS under RFK Jr. has blocked gender-affirming care for youth
A newborn baby died after contracting measles in Pennsylvania last month, and, as if it wasn’t enough grief for his parents, anti-vax activists are trying to track down and harass his family. Apparently, Gov. Josh Shapiro tangled with Robert F. Kennedy Jr. over his “inaccurate and misleading claims.”
On Aug. 26, RFK Jr., the secretary of the U.S. Department of Health and Human Services, declared that the deaths could be fabricated. We live in peculiar times, when it is government officials, not freaks on the internet, who are spreading conspiracy theories. The new spread of measles in the United States since Donald Trump came to power is one of the most shameful parts of the story of modern American politics, and the tragedy of parents who lost their baby because more and more people refused to vaccinate may seem absolutely unrelated to LGBTQ rights, but actually, there is a pretty solid connection.
Because RFK Jr., the same man who was fighting vaccination, promoted the false idea that vaccines caused autism, and even curated the anti-vaccine organization Children’s Health Defense before going into politics, is also a known opponent of transgender rights. Under his “leadership,” gender-affirming care for trans minors was banned, and there were also created new healthcare guidelines recognizing only two genders.
All around the globe, there is a weird correlation between anti-LGBTQ — particularly anti-trans — ideas and anti-science movements. And it should be clearer to the general public. People who are speaking against LGBTQ rights are not just threatening minorities. They are a danger to everyone.
The Trump-Vance administration is an iconic example of such tendencies.
Trump himself is a known critic of modern scientific studies — for example, believing in the same anti-vax conspiracies that Kennedy promoted, and showing obvious skepticism that global warming exists, despite all the evidence that has been shown by climatologists. And he is also a man who used trans people as boogeymen. Under his command, trans people were kicked out of the military. And even worse, recently he made an extremely chilling statement about the 2026 midterm elections, urging voters to “pretend I’m on the ballot” and vote for Republicans, and while discussing what he says is at stake, he said that if Republicans win, “transgenderism” will “end.” This is an offensive statement at best and genocidal at worst.
And, of course, I think everyone remembers the Department of Government Efficiency (DOGE), which was led by infamous billionaire Elon Musk, who announced to the world that he would destroy the “woke mind virus” that killed his child just because his trans daughter, Vivian Wilson, well, is happy to be a trans person.
DOGE is known not just for cancelling academic research around LGBTQ studies and gender studies. No, this agency abruptly canceled and froze thousands of federal science, research, and health grants, attacking such vital health programs as cancer research, vaccination research, and diabetes research, among others. As you can see, they are not just attacking people who are “affected” by the “mind” virus — they are dangerous to everyone, even if most of the public standing of Musk was around his anti-trans politics and he tried to present himself as a pro-science, pro-progress man by supporting the space industry.
An even more vivid example is the so-called Dark Enlightenment movement.
This extremely reactionary political movement was born in the late 2000s, and originally grew from very democratical classical liberal ideas. Until it became anti-democratic itself. And also often It was created by American software engineer Curtis Yarvin (writing under the pseudonym Mencius Moldbug) and expanded by British philosopher Nick Land. The movement is popular among some Silicon Valley businessmen, and got support from PayPal founder Peter Thiel, and one of their main ideas is that modernity is bad. They are basically obscurantists, who see modern universities as part of “the Cathedral” — a system that, in their opinion, promotes equality and modern science that society doesn’t need. Of course, the movement’s followers are mostly anti-LGBTQ rights, and, as you can see, anti-queerness once again go hand in hand with obscurantism. Unfortunately, the movement got the support of extremely prominent politicians, including U.S. Vice President JD Vance.
In his speech from 2021, Vance proved to be an obscurantist when he claimed that universities are the enemy. He is also a known homophobe and transphobe.
So, why are anti-vaxxers, people who oppose modern scientific studies, and people who hate universities more likely to be queerphobic? Why do the same people who are defending their transphobia by showing that they support common sense actually often show zero such sense when it comes to protecting themselves and their children from measles or decreasing the chances of getting cancer?
We don’t have any statistics or studies that show that all obscurantists are queerphobic, but around the globe, the same dynamic is visible.
In Russian anti-LGBTQ censorship, books about animal biology and zoology have been censored because the censors saw “LGBT propaganda” in them. The famous pro-Putin philosopher Alexander Dugin, who is extremely anti-queer, also speaks up against modernity itself.
In Taliban’s Afghanistan, modern science and LGBTQ rights are attacked at the same time.
Even in the UK, Reform UK is known as the most anti-trans and anti-queer party, and they are facing widespread criticism from scientists and medical experts for promoting climate change denial and anti-vaccine ideas. It doesn’t mean that LGBTQ supporters never believe in conspiracy theories or that progressive politicians always support science.
No, it just means that explicit anti-science and anti-LGBTQ statements often go hand in hand.
I think there are two reasons for this correlation.
First, LGBTQ people are real. You cannot deny that sex is not binary, gender and sex are different, and transition improves the quality of life of actual trans people. Or that same-sex relationships are natural, because even animals have same-sex sexual contacts. To deny it, you need an ideology or a conspiracy theory.
The second reason is that anti-scientific populism and anti-LGBTQ conspiracy theories are popular among the same category of people. It’s a “bundle” of ideas — a trend that conservative voters often adopt together. Studies also show that people who are likely to believe in one conspiracy theory are more likely to believe in another.
But the question is more broad. We don’t speak enough about the harm anti-scientific conspiracy theories and obscurantist politicians around the globe create for mankind in general. Not all people would suffer from a prohibition of hormone therapy, or attacks on same-sex marriage. But anti-global warming ideas, anti-vax advocates, and restrictions on modern research, especially medical research, are potentially dangerous to any human being.
And one of the best things LGBTQ activists could do is just show society that they are being used — that the same people who are stealing LGBTQ rights are also destroying medicine and the environment, and it’s a threat to their own traditional families and future of all kids no less than to queer people.
Commentary
Please join me in supporting the Washington Blade Foundation
An important event impacting the LGBTQ community will be held on Sept. 12 in Rehoboth Beach, Del.
The event is a fundraiser for the Washington Blade Foundation. Whether you can join us in person, or just be with us from a distance, I ask you to seriously consider becoming a sponsor of this event. You may ask why should you care, why is this important, and how the Blade Foundation supports the LGBTQ community.
The event will feature an open bar, food catered by the Blue Moon, entertainment, and speeches from Blade staff along with remarks from Rehoboth’s Mayor-elect Susan Stewart and another surprise guest or two. You can buy tickets on Eventbrite; if you’re interested in sponsoring the event, contact Publisher Brian Pitts at [email protected].
The Blade Foundation was begun to ensure the history of our community, written in the pages of the Washington Blade, was archived, and never lost. That effort was a success thanks to the support of the DC Public Library. Now the Blade Foundation works to help ensure there will be future LGBTQ journalists working throughout the media, not just for the Blade. By funding interns and fellowships for LGBTQ journalism students, we help make that possible. By helping to fund the international news section of the Blade, the Foundation helps to keep the LGBTQ community around the world connected. In many countries where our community is either still not accepted, or worse, tortured, members of our community living in those places may only get news of their communities by reading the Blade online.
I know many of you reading this already know, the Washington Blade newspaper has been in existence, and reporting on the LGBTQ community, for more than 56 years. The paper’s reporting is done by those who are part of the community, and that makes a real difference. The paper is proud of its journalists, and the numerous awards they have won. One is Lou Chibbaro Jr., who recently was the subject of a documentary aired on PBS. He, and others like him, report the news honestly, without bias, but with fervor, because they actually live the stories.
In those 50-plus years since Stonewall, the Blade has been reporting on the progress our community has made. The steps forward, the stumbles, those allies who have worked with us, and those people who have tried to stop us from living our lives as who we were born to be. Again, the news is being reported by members of our own community. It is not others writing about us, but us, writing about ourselves. The Blade is followed by many mainstream media outlets, and stories that first only the Blade covered, ignored by mainstream media, were then picked up and reported garnering the widespread coverage they deserve. The Blade is the best place to find out about what the members of our own community are doing, and what others are doing to, and for, us.
It is sad that today the Blade has to report we are at a place in history where we are fighting just to keep the strides for equality we have made over the past 50 years. Because of that, it is even more important than ever, that the Washington Blade keeps publishing. Today, the Blade is the only LGBTQ news outlet with a dedicated seat in the White House briefing room. That is important for the Blade, and for all the members of our own community. It is important the Blade be where the action is.
The Blade’s international coverage helps us in the United States to understand where we can help those in our community who may be suffering and less fortunate, but also to celebrate with those who are even more free in many ways. The recent stories about World Pride in Amsterdam inspire us to fight even harder for our rights here, so we never again have a president who will work to keep our community from being all it can be. That we will never again have a President who threatens the lives of our trans sisters and brothers, threatens their healthcare, and throws our community’s heroes out of our military. Those news stories are important to write, and they often only get written about fully, in the Blade.
So again, I ask you to consider being a sponsor, and joining us in Rehoboth on Sept. 12. Or if you can’t be in Rehoboth, that you support our work from a distance, and support this important event. The Washington Blade Foundation is a 501c(3) non-profit. So, whether you are a business supporting the community, an individual ally, or a member of the community, please dig deep, and help to support the future of LGBTQ journalism, and future LGBTQ journalists. By doing so, you are supporting the future of the LGBTQ community. You can donate online at bladefoundation.org/donate.
Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist.
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