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Same-sex couples seek relationship recognition in Namibia

Supreme Court in May ruled country must recognize overseas marriages

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(Bigstock photo)

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.

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Commentary

Celebrate Pride in Lost River, a slice of rural heaven

West Virginia LGBTQ getaway hosts events June 12-14

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(Washington Blade photo by Michael Key)

“Country roads, take me home, to the place I belong, West Virginia …” Those immortal lyrics describe one of the best-kept secrets for LGBTQ Washingtonians: Lost River, W.Va.

Less than 2.5 hours from the D.C. metro area, Lost River, in Hardy County, W.Va., is a haven for LGBTQ Mountaineers and our nearby city neighbors. From queer-owned businesses and artwork to a vibrant community of LGBTQ residents, Lost River has been a destination for LGBTQ visitors seeking a mountain getaway for nearly 50 years. For some, our rural community has become home for those who want to trade city life for country living.

Because Lost River welcomes all, we celebrate Pride each year in our slice of heaven.

Lost River Pride Weekend will be held June 12–14, the weekend prior to Capital Pride. If you haven’t been, our Pride is a little different from the urban Pride events most people are used to. In Lost River, forget the multinational corporate sponsors. Instead, think about local talent, grassroots community organizations, and our version of patriotism on full display. Most of all, we welcome people from all walks of life to live authentically as themselves, regardless of where they come from, how they think, or how they love. We truly welcome everyone.

Coincidentally, Lost River Pride Weekend is being held on President Trump’s birthday weekend, including a variety of traffic-jamming events in the D.C. area and the upcoming fight on the White House lawn. Why not come visit Lost River for the day or the weekend (we have some wonderful places to stay) and get a taste of West Virginia living?

While our town has only about 500 people at any given time, we swell to over twice that during Pride weekend. Friday evening includes an intimate cabaret at the Inn at Lost River (whose general store is on the National Register of Historic Places). Our centerpiece, the Lost River Pride Festival, is hosted on Saturday at the local farmers market, followed by an afternoon drag pool performance and an evening performance by the world-renowned Tom Goss at the Guesthouse Lost River. Finally, we finish the weekend with a closing brunch at the Inn to reaffirm our Pride. In between events and throughout the weekend, visitors and locals indulge in local art, restaurants, and more.

We recognize that West Virginia isn’t always seen as welcoming to LGBTQ people. State law does not protect against discrimination based on sexual orientation or gender identity, and cultural stereotypes remain persistent. Additionally, trans girls are prohibited from participating in sports of their affirmed gender in schools. In a state considered one of the most conservative, it can be difficult to see progress.

However, our community exists to prove that progress is possible. In fact, due to the work of statewide groups such as Fairness WV, 21 municipalities have passed local ordinances prohibiting discrimination based on sexual orientation and gender identity, covering more than 13 percent of the West Virginian population. Last year, Lost River Pride sponsored the first-ever equal cash prize for the nonbinary category of the Lost River Classic, a local bike race held annually. There is hope in every corner of our community.

Recently, Lost River Pride was the only West Virginia contingent in the 2025 World Pride Parade, which was held during Capital Pride Weekend. I will always remember our rugged truck coming down 14th Street to a sea of diverse, friendly faces, while waving our state flag and hearing many voices singing “Country Roads” in every remix available (trust me, there are many).

Lost River Pride is one of only a handful of Pride organizations in West Virginia and one of the few structured as a nonprofit. We sponsor the only LGBTQ scholarship in Eastern West Virginia for a graduating senior from a local high school. Moreover, we provide monthly community programming and make frequent donations to local allied nonprofits, including the fire department, food pantry, and schools.

I encourage you to attend Lost River Pride Weekend, especially this year’s Lost River Pride Festival on Saturday, June 13, from 12-4 p.m., at the Lost River Farmers Market (1089 Mill Gap Road, Lost City, W.Va. 26810). Feel free to reach us at [email protected] or visit our website at lostriverpride.org for more information.


Tim Savoy is president of the board of directors of Lost River Pride.

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Commentary

How do you vote a child out of their future?

Students reportedly expelled from Eswatini schools over alleged same-sex relationships

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(Photo by Vladgrin via Bigstock)

There is something deeply unsettling about a society that turns a child’s future into a public referendum. In Eswatini, there were reports that students were expelled from school over alleged same-sex relationships, and that parents were invited to vote on whether those children should remain, forcing us to confront a difficult question on when did education stop being a right and become a favor granted by collective approval? Because this is a non-neutral vote.

A vote reflects power, prejudice and personal beliefs, which are often linked to tradition, culture, politics and religion. It is shaped by fear, by stigma, by long-standing narratives about morality and belonging. To ask parents, many of whom may already hold hostile views about LGBTIQ+ people, to decide the fate of children is not consultation. It is deferring the responsibility and repercussion. It is placing the lives of young people in the hands of those most likely to deny them protection.

And where is the law in all of this?

The Kingdom of Eswatini is not operating in a vacuum. It has a constitution that guarantees the promotion and protection of fundamental rights, including equality before the law, equal protection of the laws, and the right to dignity. The constitution further goes on to protect the rights of the child, including that a child shall not be subjected to abuse, torture or other cruel, inhuman and degrading treatment or punishment.  

The Children’s Protection and Welfare Act of 2012 extends the constitution and international human rights instruments, standards and protocols on the protection, welfare, care and maintenance of children in Eswatini. The Children’s Protection and Welfare Act of 2012 promotes nondiscrimination of any child in Eswatini and says that every child must have psychosocial and mental well-being and be protected from any form of harm. The acts of this very instance place the six students prone to harm and violence. The expulsion goes against one of the mandates of this act, which stipulates that access to education is fundamental to development, therefore, taking students out of school and denying them education contradicts the law.  

Eswatini is a signatory to the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. These are not just commitments made to make our governments look good and appeasing. They are obligations. The Convention on the Rights of the Child is clear regarding all actions concerning children. The best interests of the child MUST be a primary consideration and NOT secondary one. According to the CRC, as indicated in the Declaration of the Rights of the Child, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.” It is not something to be weighed against public discomfort and popularity.

The African Charter on the Rights and Welfare of the Child reinforces this, grounding rights in non-discrimination (Article 3), privacy (Article 10) and protection from all forms of torture (Article 16). Access to education (Article 11) within these frameworks is not conditional but is a foundational right. It is not something that can be taken away because a child is perceived as falling outside social norms and threatening the moral fabric of society. It is a foundational right and determines one’s ability to participate in civic actions with dignity.

So again, where is the law when children are being expelled?

It is tempting to say the law is silent but that would be too generous. The law is not silent rather, it is being ignored and bypassed in favor of systems of decision-making that make those in power comfortable. When schools and their leadership defer to parental votes rather than legal standards, they are not acting neutrally. Expelling a child from school because of allegations is not a decision to be taken lightly. It disrupts education and limits future opportunities and for children already navigating identity and social pressure, this kind of exclusion can have profound psychological effects. It isolates them. It marks them for potential harm. Imagine being a child whose future is discussed in a room where people debate your worth. That is exposure. That is harm. There is a tendency to justify these actions in the language of culture, tradition, religion and protecting social cohesion. But culture is not static and the practice of Ubuntu values is not an excuse to violate rights. If anything, the principle of Ubuntu demands the opposite of what is happening here.

Ubuntu is not about conformity. It is about recognition and is the understanding that our humanity is bound up in one another. That we are diminished when others are excluded. That care, dignity, respect and compassion are not optional extras but central to how we exist together. Where, then, is Ubuntu in a school where some children are deemed unworthy of access to education?

Why are those entrusted with protecting children are failing to do so?

There is a very loud contradiction at play. On one hand, there is a claim to shared values and to the importance of community. On the other hand, there is a willingness to isolate and exclude those who do not fit within the narrow definition of what is acceptable. You cannot have both. A community that thrives on exclusion is neither cohesive nor safe.

It is worth asking why these decisions are being made in this way. Why not follow the established legal processes? Why not ensure that any disciplinary action within schools aligns with national and international obligations? Why introduce a vote at all? The answer is uncomfortable and lies in legitimacy and accountability. A vote creates the appearance of a collective agreement. But again, I reiterate, it distributes responsibility across many hands, making it hard to hold anyone accountable. It allows the school leadership to say “lesi sincumo sebantfu”(“This is what the community decided, not me”) rather than confronting their own role in human rights violations. If the law is clear and rights, responsibilities and obligations are established, then the question is not what the community feels. The question is why those entrusted with protecting children are failing to do so.

There is also a deeper issue here about whose rights are seen as negotiable. When we talk about children, we often speak of care, of understanding, of protection and safeguarding them because they are the future. But that language becomes selective when it intersects with sexuality, particularly when it involves LGBTIQ+ identities. Suddenly, care, understanding, protection, and safeguarding give way to punishment.

Easy decisions are not always just ones.

If the kingdom is serious about its commitments under its constitution, the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, then those commitments must be visible in practice, not just in policy documents. Rather, they must guide decision-making in schools and in communities. That means recognizing that a child’s right to education cannot be overridden by a show of hands. It means ensuring that schools remain spaces of inclusion rather than sites of moral policing. It means holding leaders and institutions accountable when they fail to protect those in their care.

Bradley Fortuin is a consultant at the Southern Africa Litigation Center and a human rights activist.

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Commentary

Adoption under suspicion

Italy and the US are two case studies

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The Coliseum in Rome on July 12, 2025. Italy is a case study of what can happen when the legal framework for adoption rights for same-sex couples is uncertain. (Washington Blade photo by Michael K. Lavers)

A right does not need to be banned to be restricted. Sometimes it only needs to be made uncertain.

That is what emerges from a closer examination of adoption access for same-sex couples across different countries. There is no broad legal rollback. What appears instead is a more subtle pattern: rights that remain on paper but become fragile, conditional, and uneven in practice.

Italy provides a clear example.

Since 2023, under the government of Giorgia Meloni, administrative decisions have limited the automatic recognition of both mothers in female same-sex couples, particularly in cases involving assisted reproduction abroad. In practice, many families have been forced into additional legal proceedings to validate relationships already established.

At the same time, Italy has intensified its opposition to surrogacy, extending penalties even to those who pursue it outside the country. Human rights organizations have warned that these measures disproportionately affect LGBTQ families, particularly male couples.

The judiciary, however, has pushed back.

In 2025, the Constitutional Court ruled that a non-biological mother cannot be excluded from legal recognition when there is a shared parental project. It also removed a long-standing restriction that prevented single individuals from accessing international adoption.

Italy has not eliminated these rights. But it has made them unstable.

When a right depends on litigation, judicial timelines, or shifting interpretations, it is no longer fully guaranteed.

In the United States, the structure differs, but the outcome converges.

At the federal level, same-sex couples can adopt. Yet the system varies widely across states.

Data from the Movement Advancement Project show that while some states explicitly prohibit discrimination in adoption, others provide no clear protections. In several states, licensed agencies can refuse to work with same-sex couples based on religious objections.

Access, therefore, is shaped not only by law, but by geography, institutions, and applied standards.

Research from the Williams Institute further complicates the narrative. Same-sex couples adopt and foster children at higher rates than different-sex couples.

The contradiction is clear.

Child welfare is invoked, yet the pool of available families is reduced. Faith is cited, yet it is used as a filter within publicly funded systems.

The consequences are tangible
children remain longer in care
processes become more complex
families face unequal scrutiny

What is happening in Italy and the United States is not isolated. Across parts of Europe, conservative governments have advanced legal frameworks that reinforce traditional definitions of family while limiting recognition of diverse ones.

Adoption is not always addressed directly. But the impact accumulates.

Options are restricted while the language of protection is used to justify it.

There is no need to soften it.

This is not only a debate about family models. It is a decision about who is recognized as family and who must continue asking for permission.

That is not neutral.

It is political.

And when a right depends on where you live, who evaluates you, or how hard you are willing to fight for it, that right is already being weakened.

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