Walters backs LGBT marriage

Two women who got married in South Africa 10 years ago have initiated what may become a landmark legal case in Namibia.

11 July 2019 | Justice

A High Court bid by a same-sex couple to have their marriage recognised in Namibia will not be opposed by Namibia's ombudsman, who says marriage should be an equal right irrespective of gender.

“We will not oppose this application. That would be contrary to me and the office,” Advocate John Walters said this week.

“As a human rights defender, how can I oppose the right for marriage to be recognised in this country? I have at all times defended and tried to protect and advance the rights of lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons,” Walters said. The Office of the Ombudsman is one of eight respondents cited in a High Court application brought by Julia Susan Jacobs and Anita Grobler, who was born at Otjiwarongo and married Jacobs in South Africa 10 years ago. The couple have been together for more than 25 years.

The other seven respondents, including the minister of home affairs and immigration and the attorney-general of Namibia, have filed notices that they will oppose the application, arguing that marriage in terms of Namibian laws can only be legal between a man and a woman.

In an a similar case brought by Matsobane Daniel Digashu, and his spouse Johann Hendrik Potgieter in late 2017, the Ombudsman was the sole respondent listed who did not oppose their application to have their marriage recognised in Namibia.

Time is ripe

Walters warned that it's too early to say whether a recent instruction that all pending cases related to same-sex marriages will be heard by a full bench could lead to what some hope will be a ground-breaking recognition of same-sex marriages in Namibia.

Nevertheless, he said, “I believe these issues must be before court,” including the matter of the law which criminalises sodomy.

He said the question before the court essentially is whether marriage extends to persons of the same gender, and the court is the only institution “that can give that interpretation”.

Moreover, he said recent developments in the region have raised hopes, especially among Namibia's LGBTI community and defenders of equal human rights, that the “circumstances might be ripe” to tackle these urgent questions.

High hopes

Namibians have increasingly called for the scrapping of the sodomy law and the strengthening of equal rights and protections for sexual and gender minorities in the country.

Most recently, First Lady Monica Geingos spoke about the need to repeal the outdated law criminalising sodomy between consenting adult men.

At a roundtable discussion hosted by the ombudsman earlier this year to address equal protections for Namibia's LGBTI+ communities, several lawmakers called for these issues to be tackled urgently.

Yvonne Dausab, chairperson of the Law Reform and Development Commission (LRDC), at the time said Namibia's constitution lacked “sufficient language to describe and protect rights pertaining to the LGBTI plus communities”.

She said Namibia's legislative framework does not include adequate safeguards to protect LGBTI persons and same-sex couples, and in some cases, there are “glaring exclusions”.

National Council chairperson Margaret Mensah-Williams said “irrespective of how uncomfortable it is, it is time that we should talk about the LGBTI community. They are part of our communities”.

Equality for all

In an affidavit filed as part of the application, Jacobs said the couple were forced to turn to the High Court last year after facing a number of hurdles in their attempt to relocate to Namibia.

She said that it became clear their attempts to obtain legal documents for her to reside in the country would be rejected “since our 'gay marriage' was not recognised by the Namibian government”.

Jacobs and her legal team argue that there is no Namibian law or statute which “formally recognises the marriage of a husband and wife who got married in another country. Those marriages are simply recognised. The same should be the case with our marriage”.

They further argue that the couple have an equal right to recognition as a family under the Namibian constitution. They argue that it is unconstitutional and discriminatory to deny their marriage simply because they are of the same gender, which infringes on their right to dignity.

The matter has been scheduled for case management before High Court Judge Harald Geier on 4 September 2019. Jacobs and her wife are represented by Stephen Vlieghe of Koep & Partners and government attorney Sylvia Kahengombe is acting on behalf of the respondents.


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