Courts inundated with equal rights applications

JANA-MARI SMITH



WINDHOEK

The proliferation of lesbian, gay, bisexual, transgender and queer (LGBTQ)-related lawsuits brought by families and individuals demanding equal rights under Namibian law has brought the matter under the public discourse microscope.

Since the legal year commenced in February, nine lawsuits related to LGBTQ equality affairs have been dealt with or remain on the roll at the Windhoek High Court.

One case is currently at the country’s apex court on appeal after an unsuccessful bid for domicile in the High Court by a Mexican married to a Namibian citizen. The same family has subsequently lodged three more separate cases related to their rights to exist as a family in Namibia.

Fanning the flame

The much-criticised decision of the home affairs ministry to, for the past two months, ban newborn twins Paula and Maya Delgado Lühl from coming to Namibia has added fire to the historical battle of the LGBTQ community in their quest for equal rights.

The ministry this week issued emergency travel documents, which now paves the way for the minors to enter the country.

The fight to #BringPaulaandMayaHome has led to international headlines, protests, petitions and mounted pressure on government to prove its narrative that equal treatment of all Namibians - including the LGBTQ community - is guaranteed in the country.

One of the latest tests is the start of today’s watershed same-sex marriage trial involving two Namibian citizens who were married to same-sex partners outside of the country’s borders - in South Africa and Germany.

It pits Namibian Anette Seiler-Lilles and her German spouse Anita Seiler-Lilles, and Namibian Johann Potgieter and his husband Daniel Digashu against immigration authorities in a fight to be granted the right to live as a family in Namibia.

They argued that the marriages of heterosexual couples concluded outside of Namibia are recognised, and foreign spouses are granted residential rights.

They further said denying them such rights is unconstitutional and discriminatory.

The trial will take place in front of a full-bench of three High Court justices – judges Esi Shimming-Chase, Hannelie Prinsloo and Orben Sibeya – who will be asked to rule on whether Namibia’s immigration control act should recognise same-sex unions that were validly concluded in countries where marriage is not the sole right of heterosexual couples.

No changes to law needed

Dianne Hubbard of the Legal Assistance Centre (LAC) explained that the case is not about legalising same-sex marriages in Namibia per se.

“It is about the interpretation of Namibia’s immigration control act. The two couples are seeking to have their same-sex marriages, validly concluded outside of Namibia under the laws of other countries, recognised for the very narrow purpose of being able to live together as a family in Namibia,” he said.

She underlined: “It would be possible for the court to do this without making any decision on whether or not same-sex marriages must be allowed to take place within Namibia under Namibian law”.

Other cases

Meanwhile, two other cases involving Namibians and their same-sex foreign spouses have been registered at the Windhoek High Court. Both cases have been paused pending the outcome of the current case.

They involve Namibian Pascale Henke and South Africa Jennifer du Toit, and South Africa Michael Smolinksy and his Namibian husband Andreas Gerdes.

Hubbard underlined that many countries recognise marriages or adoptions that take place elsewhere for a purpose such as immigration without changing local laws.

Equal Rights advocate Linda Bauman said all the cases before the courts boost the long and - at times - arduous fight for equality.

“These cases can benefit the broader spectrum of human rights and overturn the 30 years of lack of recognition from Namibia on the protections and existence of the LGBTQ community. These cases will amplify dialogue within all spheres of the country.”