High Court paving the way for LGBTQ equality
Human rights lawyer Michaela Clayton explained that though the court could not provide immediate relief to the couples, “the judgment sets out compelling reasons why the Supreme Court should overturn its decision in the ‘Frank’ matter.”
JANA-MARI SMITH
WINDHOEK
A legal team is hard at work preparing a Supreme Court appeal that many hope will result in the historic overturning of a 20-year-old judgment the government has long wielded as justification for refusing to recognise same-sex marriages under the immigration act.
The appeal stems from the dismissal earlier this month, by three High Court judges, of applications brought by two Namibians and their foreign-born spouses, who have battled for years to be afforded the same residential rights as heterosexual foreigners married to Namibians.
Their applications were dismissed, as the court felt it was bound to a two-decade-old Supreme Court judgment known as ‘Frank’, which denied that same-sex partners enjoy the same rights as their heterosexual counterparts under the immigration act.
Nonetheless, the judges unanimously issued a ruling condemning the lack of constitutional protection for gay, lesbian, trans and queer Namibians against discrimination.
Many believe the judgment was crafted to help boost the prospects of a successful Supreme Court appeal.
“The rights of gay and lesbian individuals have never before been acknowledged so strongly,” Dianne Hubbard of the Legal Assistance Centre said recently after a study of the ruling.
Human rights lawyer Michaela Clayton explained that though the court could not provide immediate relief to the couples, “the judgment sets out compelling reasons why the Supreme Court should overturn its decision in the ‘Frank’ matter.”
Recognition
“The Supreme Court is not required to follow the reasoning of the High Court, but in the course of coming to its own decision, it would almost certainly give serious consideration to the views of the three-judge panel that made a unanimous decision,” Hubbard noted.
She said a review of the Frank judgment was timely and the High Court was correct to point out “many problematic issues in the ‘Frank’ judgment.”
The Southern Africa Litigation Centre (SALC) recently stressed that the High Court’s ruling amounted to a clear indictment of ‘Frank’.
The court found it was “was wrong, outdated and that it should be changed, and urged the Supreme Court to effect the change. The High Court recognised the rights of homosexual couples even though it could not effect the change”.
SALC programmes manager Anna Mmolai-Chalmers said the judgment “gives the applicants hope as they plan to approach the Higher Court.”
Road ahead
Once the appeal is filed, the Supreme Court will grapple with two cases linked to LGBTQ equality and rights.
In October last year, in the citizenship case in which a Namibian father and his Mexican-born husband battled successfully to secure citizenship by descent for their surrogacy-born son, High Court judge Thomas Masuku emphasised that Namibia’s constitution applies to all Namibians “regardless of colour, gender, sexual orientation …”
Hubbard said both cases show that the Namibian courts “are beginning to acknowledge that the principles of the Namibian constitution apply to all, regardless of sexual orientation.”
Equal rights advocate Omar van Reenen the community is “confident that the Supreme Court will rectify the wrong that was done in the ‘Frank’ case, which was decided 20 years ago, which basically does not recognise LGBTQ persons and their rights”.
WINDHOEK
A legal team is hard at work preparing a Supreme Court appeal that many hope will result in the historic overturning of a 20-year-old judgment the government has long wielded as justification for refusing to recognise same-sex marriages under the immigration act.
The appeal stems from the dismissal earlier this month, by three High Court judges, of applications brought by two Namibians and their foreign-born spouses, who have battled for years to be afforded the same residential rights as heterosexual foreigners married to Namibians.
Their applications were dismissed, as the court felt it was bound to a two-decade-old Supreme Court judgment known as ‘Frank’, which denied that same-sex partners enjoy the same rights as their heterosexual counterparts under the immigration act.
Nonetheless, the judges unanimously issued a ruling condemning the lack of constitutional protection for gay, lesbian, trans and queer Namibians against discrimination.
Many believe the judgment was crafted to help boost the prospects of a successful Supreme Court appeal.
“The rights of gay and lesbian individuals have never before been acknowledged so strongly,” Dianne Hubbard of the Legal Assistance Centre said recently after a study of the ruling.
Human rights lawyer Michaela Clayton explained that though the court could not provide immediate relief to the couples, “the judgment sets out compelling reasons why the Supreme Court should overturn its decision in the ‘Frank’ matter.”
Recognition
“The Supreme Court is not required to follow the reasoning of the High Court, but in the course of coming to its own decision, it would almost certainly give serious consideration to the views of the three-judge panel that made a unanimous decision,” Hubbard noted.
She said a review of the Frank judgment was timely and the High Court was correct to point out “many problematic issues in the ‘Frank’ judgment.”
The Southern Africa Litigation Centre (SALC) recently stressed that the High Court’s ruling amounted to a clear indictment of ‘Frank’.
The court found it was “was wrong, outdated and that it should be changed, and urged the Supreme Court to effect the change. The High Court recognised the rights of homosexual couples even though it could not effect the change”.
SALC programmes manager Anna Mmolai-Chalmers said the judgment “gives the applicants hope as they plan to approach the Higher Court.”
Road ahead
Once the appeal is filed, the Supreme Court will grapple with two cases linked to LGBTQ equality and rights.
In October last year, in the citizenship case in which a Namibian father and his Mexican-born husband battled successfully to secure citizenship by descent for their surrogacy-born son, High Court judge Thomas Masuku emphasised that Namibia’s constitution applies to all Namibians “regardless of colour, gender, sexual orientation …”
Hubbard said both cases show that the Namibian courts “are beginning to acknowledge that the principles of the Namibian constitution apply to all, regardless of sexual orientation.”
Equal rights advocate Omar van Reenen the community is “confident that the Supreme Court will rectify the wrong that was done in the ‘Frank’ case, which was decided 20 years ago, which basically does not recognise LGBTQ persons and their rights”.
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