Same-sex marriages before full bench

15 July 2019 | Justice

The fate of three Namibians who tied the knot with their same-sex partners in countries where gender is not a barrier to marriage, and who want their marriages legally recognised in Namibia, has been placed in the hands of three yet-to-be-designated High Court judges.

In June, Judge President Petrus Damaseb gave instructions for all three pending cases to be consolidated and heard simultaneously by a full bench of three judges.

Two of the cases involve Namibian citizens who were legally married in South Africa, the only country in Africa where gay marriage is legal.

The third case deals with a couple who were married in Germany.

The South Africans - Daniel Digashu and Julia Susan Jacobs, German national Anita Seiler-Lilles and their Namibian-born spouses took their cases to the Windhoek High Court after they faced the same immigration challenges in relocating to Namibia.

Digashu and his husband, Johann Potgieter, were married in South Africa in 2015 and sued the Namibian authorities in 2017.

Jacobs and her wife, Anita Grobler, were married in 2009 and have been in a relationship for over 25 years. They sued last year.

Seiler-Lilles met her wife Anette Seiler in 1998. In 2004, they formalised their relationship in Germany as a “life partnership”, but were able to marry each other legally in 2017 when Germany legalised same-sex marriages.

Their case was also lodged late last year.

All three couples document numerous setbacks in their attempts to move to Namibia with their Namibian-born spouses, including discrimination at the hands of immigration officials.

New ground

The issue of same-sex relationships was last put to the test more than 20 years ago when a same-sex couple sued immigration authorities who had denied a Namibian woman's long-term partner a permanent residence permit.

While the court eventually ruled that the woman, Elizabeth Frank, should be granted permanent residence, the courts did not find in favour of same-sex relationships based on a number of reasons.

Toni Hancox, the director of the Legal Assistance Centre (LAC), told Namibian Sun recently that these cases are ideal to test the legal issue of same-sex partnerships and marriages.

“It is high time to address this matter in Namibia,” she said.

Hancox said Damaseb's decision could be a nod towards the court's recognition of the spotlight on same-sex marriages and the decriminalisation of homosexuality across the continent and elsewhere.

“I think it shows that this is a matter of great importance, and given the recent judgments in Africa, the court realises that this is a question that must be considered at this stage, and progressively so.”

She added that these three matters are perfectly suited to be test cases. “The parties are already married and two [weddings] took place in a country that has very strong links to Namibia.” Hancox explained that a full bench means “there will be different thoughts on the issue, and not one judge to have to make this decision alone”.

At least two of the three judges must agree on the judgment, she added.

Careful optimism

Legal experts advise caution though, noting that it is not unusual for cases raising the same legal issues to be heard together. Moreover, there is a possibility of a narrow verdict which would limit the ruling to foreign marriages, the LAC's Dianne Hubbard pointed out.

She added that many countries reserve the right to refuse to recognise the validity of a foreign marriage on the grounds that it would violate their public policy, an issue the LAC included in its 2015 report on lesbian, gay, bisexual and transsexual (LGBT) issues.

Nevertheless, she said, “hopefully it will pave the way for the decriminalisation of sodomy between consenting adults and legal recognition of same-sex partnerships and marriages.”

She noted that legal progress on such issues often is incremental in other countries.

In Namibia, “one can certainly see more visibility and acceptance of the LGBT community in recent years, so it is certainly time for the law to change accordingly.”

Both lawyers emphasised that it is important to understand there may be an appeal no matter what the judgment.

The case is likely to focus on several parts of the constitution, including Article 14, which deals with family; Article 10, which deals with equality and freedom from discrimination; and the right to dignity.

“Dignity has been a key issue in LGBT cases in other countries,” Hubbard said.

Slow progress

In 2006, South Africa became the first African nation to allow gay marriage.

Same-sex relations are illegal on much of the continent and are punishable by death in Mauritania and Sudan, as well as in parts of Nigeria and Somalia.

Polling by Afrobarometer in 2016 found that 78% of Africans across 33 countries were intolerant of homosexuality.

In 2016, the Namibian government informed the United Nations that it considered the issue of same-sex marriages in Namibia as “a non-issue” and had no intention of repealing any laws, including the common-law crime of sodomy.


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