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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

Bearing witness to the unimaginable

Israeli Embassy on Friday showed raw footage of Oct. 7 attack

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Rockets launched from the Gaza Strip head towards Israel on Oct. 7, 2023. (YouTube screen caption)

(Editor’s note: This oped contains descriptions of graphic violence and depictions of anti-Semitism.)

We journalists all too often find ourselves in a position where it is necessary to bear witness to the unimaginable. One such moment happened on Friday.

The Israeli Embassy in D.C. invited me and five other journalists to watch raw footage of Hamas’s surprise attack against Israel on Oct. 7 as it happened. Videos from that awful Saturday had already circulated on social media and appeared in news reports. I had seen many of them, so I did my best to brace myself for what I was about to see. Words cannot begin to describe the horror that we saw.

• Militants tried to decapitate a man with a garden hoe while he was still alive.

• A home security camera system in Netiv HaAsara, a settlement that borders Beit Lahiya, a town in the northern Gaza Strip, shows a man and two of his sons running to a bomb shelter. Militants a few seconds later threw a grenade into it. They brought the two boys back into the house. One militant took what looked like a bottle of water out of the refrigerator and drank from it before he put it back and walked away. One of the boys repeatedly asked his brother “Why am I alive?” before they escaped. Their mother returned with local security personnel and found her husband’s body in the bomb shelter’s entrance. (Embassy spokesperson Tal Naim told us after we watched the footage that militants killed the older son in Zikim, at a nearby kibbutz. The oldest of the two boys who survived the grenade attack lost vision in one eye.)

• A video showed militants throwing grenades into a bomb shelter in which people had taken shelter. One militant said the “dogs are scared.”

• A video shows militants throwing Hersh Goldberg-Polin, a 23-year-old American Israeli who was attending the Nova music festival in Re’im, a kibbutz that is roughly three miles from Gaza, into the back of a pick-up truck. A grenade that militants had thrown into a bomb shelter in which Goldberg-Polin and others had sought refuge severed part of his arm. The injury was clearly visible in the video. 

• Body cameras that first responders wore when they arrived at the music festival after the attack recorded burned bodies in the back seat of a car and in nearby bushes.

• Videos that militants recorded show decapitated Israeli soldiers.

• The footage included pictures of charred bodies of babies and young children.

• Militants in Gaza recorded gunmen removing an injured woman from the trunk of a Jeep and forcing her into the backseat of a car.

The Israeli government has said roughly 1,200 people have been killed, including at least 260 people who militants murdered at the Nova music festival. The Israeli government also says more than 5,000 people have been injured in the country since the war began. Goldberg-Polin and Yarden Roman-Gat, whose gay brother, Gili Roman, spoke with the Washington Blade on Oct. 30 in D.C., are among the more than 200 people who are currently being held hostage in Gaza.

Yarden Roman-Gat (Courtesy photo)

Hamas rockets have reached Tel Aviv, Jerusalem, Ben Gurion Airport, and other locations throughout Israel. Israeli Defense Forces and Hezbollah, another militant group, have exchanged fire across the Israel-Lebanon border.

The Hamas-controlled Gaza Health Ministry says more than 13,000 people have died in the enclave since Oct. 7. The Israeli government has cut electricity and water to Gaza and has stopped nearly all food and fuel shipments.

Calls for a ceasefire growing louder

The footage that we watched was 43 minutes long and included videos that militants and their victims recorded on cell phones and GoPro cameras and clips from traffic cameras in southern Israel and CCTV. We were not allowed to bring cell phones into the room where we saw it.

A group of pro-Palestinian protesters was outside the embassy when we arrived. One woman who was standing a few feet away from us as we waited to go through security said she and her fellow protesters were “not there to make us feel comfortable” about what has happened to Palestinian civilians in Gaza since the war began.

• Dozens of premature newborn babies were inside Shifa Hospital in Gaza City when Israeli soldiers raided it last week. The IDF claims Hamas has an operational headquarters and tunnels underneath the hospital. The New York Times on Monday reported 28 of the babies who had been at the hospital are now receiving medical care in Egypt.

• The Committee to Project Journalists on Tuesday said 45 Palestinian journalists have been killed in Gaza since Oct. 7.

• U.N. High Commissioner for Human Rights Volker Türk on Sunday said “the killing of so many people at schools turned shelters, hundreds fleeing for their lives from Al-Shifa Hospital amid continuing displacement of hundreds of thousands in southern Gaza are actions which fly in the face of the basic protections civilians must be afforded under international law.” Türk is among those who have called for a ceasefire.

Meanwhile, incidents of anti-Semitism and Islamophobia in the U.S. and around the world have increased since Oct. 7. 

Anti-Israel graffiti on a building at the corner of 16th and Corcoran Streets, N.W., in Dupont Circle on Nov. 4, 2023. (Washington Blade photo by Michael K. Lavers)

Israeli settlers in the West Bank have also stepped-up attacks against Palestinians. 

A sign near the Church of the Nativity in Bethlehem, West Bank, on Nov. 12, 2016, welcomes visitors to the city where the Bible says Jesus was born and urges them to “Pray for the freedom of Palestine.” (Washington Blade photo by Michael K. Lavers)

The Israeli government clearly wants the world to understand the barbarity of what happened on Oct. 7, and that is why it has shown footage of that horrific Saturday to journalists and lawmakers. The footage left me deeply shaken, and perhaps that was the point.

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Commentary

LGBTQ refugees and asylum seekers in Kakuma continue to suffer

Refugee camp initially established as a safe haven

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(Photo by Adriana Mahdalova/Shutterstock)

In the midst of the ongoing refugee crisis, it is crucial to shed light on the often overlooked and harrowing experiences of LGBTIQ refugees and asylum seekers. 

Kakuma refugee camp, situated in Northwestern Kenya, is one such place where the struggle for survival is compounded by discrimination, fear and a lack of protection for the vulnerable individuals.

Kakuma refugee camp was initially established as a haven of hope for those fleeing persecution and violence. However, for LGBTIQ refugees and asylum seekers, the camp has become a living nightmare. In our countries of origin, we have faced unimaginable horrors including violence, discrimination and even death threats due to our sexual orientation or gender identity. Sadly, these challenges persist even within the camp walls.

We face relentless discrimination and stigmatization from our fellow refugees and the natives. We are often subjected to verbal and physical abuse which significantly impacts our mental health and well-being. The stigma attached to our sexual orientation or gender identity further isolates us from accessing essential services and support, leaving us in a state of vulnerability and despair.

One of the most alarming aspects of the situation at the Kakuma refugee camp and Kenya-at-large is the absence of adequate protection and legal support for LGBTIQ refugees and asylum seekers. In many cases, we are denied access to asylum procedures or face prolonged delays due to our sexual orientation or gender identity. This leaves us in a state of limbo, vulnerable to exploitation and at risk of further persecution.

Additionally, governments and international organizations need to allocate more resources to ensure the safety and well-being of LGBTIQ folks in refugee camps. Legal frameworks must be in place to protect our rights and ensure access to asylum procedures without discrimination or prejudice.

The plight of LGBTIQ refugees and asylum seekers in the Kakuma refugee camp and Africa-at-large is a reminder of the urgent need for change and increased support for vulnerable populations. By addressing the discrimination and lack of protection we face, we can work towards creating a more inclusive and compassionate world for all individuals regardless of our sexual orientation or gender identity. It is time to amplify our voices, acknowledge our struggles and work together to improve our lives.

Kieynan Gant is a refugee who lives in Kenya’s Kakuma refugee camp.

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A new day in Virginia

Democrats on Tuesday regained control of the House of Delegates

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Virginia Capitol (Washington Blade photo by Michael Key)

BY NARISSA RAHAMAN | Today is a new day in Virginia.

Across the commonwealth, Virginians came out in droves to vote for pro-equality candidates, gaining back pro-equality majorities in both chambers of the General Assembly, which will serve as a solid, important check on the anti-LGBTQ+ actions of Gov. Glenn Youngkin and his administration.

Virginians also elected the most openly LGBTQ+ officials to the General Assembly in its history, creating the largest, most diverse LGBTQ+ Caucus in the commonwealth. Let’s take a moment to welcome to the newest members of our LGBTQ+ Caucus, Dels.-elect Adele McClure, Rozia Henson, Joshua Cole and Laura Jane Cohen, and congratulate Sen.-elect Danica Roem for once again making history. Tuesday’s results show that Virginians aren’t just pro-equality; Virginians are invested in electing candidates whose identities and values match the broad diversity of our population — whether you are gay, bisexual, transgender, queer, pansexual, Black or Asian. We are so thrilled to be able to protect and expand the rights of LGBTQ+ Virginians with these incoming elected officials, whose steadfast support of their own community will be a welcome and important presence in the General Assembly for many years to come. Thank you for helping create a General Assembly that is more reflective of the beauty of our community and the promise of our commonwealth.

These results show what we already knew: Extremist, anti-equality candidates don’t win elections. We are looking forward to working with them in the upcoming session to secure and expand our rights and protect our lives and livelihoods. On the heels of a session in which lawmakers introduced the most anti-LGBTQ+ bills in the legislature’s history, it’s more important than ever to fill the halls of the General Assembly with pro-equality champions, and we’re thrilled that we’ve done just that.

On the heels of the governor’s anti-transgender model policies we are seeing right-wing, anti-LGBTQ+ school board candidates lose their races. The Spotsylvania School Board, which was the first school board to adopt the governor’s model policies this year, flipped. Many first-time candidates won their races, after running on the importance of protecting trans students. In Albemarle County, Allison Spillman (a mother of a trans kid in public schools) defeated Meg Bryce (the daughter of the late Supreme Court Justice Antonin Scalia.) Candidates who boldly ran on protecting LGBTQ+ kids won, across the commonwealth, after a year of anti-trans policies and rhetoric from Gov. Glenn Youngkin and his administration. The results of these local races, many yet to be called, will provide us with a roadmap to defeating Gov. Youngkin’s anti-trans education policy.

Elections don’t solve everything. They are one tool we use in our toolbox to achieve liberation for our community. Anti-equality lawmakers, even in the face of last night’s defeat, will be more emboldened to wage baseless attacks against our community in the hopes of grabbing back the power voters rightfully denied them on election night. We’ll continue to remain vigilant — during the General Assembly session and school board meetings — while reminding ourselves that we are better positioned to defeat anti-LGBTQ+ attacks.

Let’s continue to care for our community by showing up, speaking out, sharing our stories and living our lives openly, authentically and unapologetically.

Today we celebrate, tomorrow we get back to work.

Narissa Rahaman is the executive director of Equality Virginia.

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