Judge chastises ‘homophobic’ home affairs

20 October 2021 | Justice

JANA-MARI SMITH



WINDHOEK

Namibian High Court judge Thomas Masuku has taken aim at the home affairs ministry’s discrimination against same-sex couples.

In his judgement granting citizenship to the surrogate-born Namibian son of a same-sex couple, he said: “I cannot help but note that the insidious attitude of discrimination appears to rear its ugly head in this matter. It must be chopped off, even ruthlessly, because it does not resonate with the vision of the founding mothers and fathers of this nation, who conceived Namibia … to be a secular state, founded on the rule of law and justice for all”.

He also stressed that former home affairs minister Frans Kapofi’s insistence for a DNA test to prove paternity was “actuated or informed by discrimination”.

He added that “of course the minister denied” that discrimination played a role in the case, but “it is sometimes actions, rather than words, that determine whether or not there is discrimination”.

Masuku’s comments formed part of his full judgement released last Tuesday, following his landmark announcement compelling the home affairs ministry to grant citizenship to the two-year-old son of Namibian Phillip Lühl and his husband, Guillermo Delgado.

The judge ordered the ministry to pay all costs in the case, noting that the “minister has been unsuccessful in both his opposition and attack”.

The heart of it

Masuku said it is “grossly unfair” to deny citizenship to a child “because of the nature or circumstances of their birth, or the sexual preference of their parents”.

He said ultimately, the case, “stripped to the bare bones”, revolved around a child and his constitutional and human rights.

“In point of fact, it is in the minor child’s best interests to live with his parents and, as desired in this case, take up citizenship of the applicant by descent.”

The judge also warned that the position taken by Kapofi and his ministry could impact Namibians whose children are born outside of Namibia’s borders, whether by natural birth or other birth assistance methods.

The Delgado-Lühl family was represented by Uno Katjipuka-Sibolile of Nixon Marcus Public Law Office.

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