A recent Supreme Court judgement has renewed hope for the recognition of LGBTQ+ rights in Namibian law. The Digashu judgement, read with the dissenting judgment, has demonstrated that recognition of LGBTQ+ rights in Namibia is increasingly becoming a matter that can no longer be ignored by the legislature.

This article briefly highlights the findings of the Supreme Court in Digashu and illustrates that, although the judgment is a step in the right direction, it still leaves much room for the development of law in this area, in as far as the recognition of LGBTQ+ rights are concerned. It also touches on certain statements made in Parliament by the Honourable Prime Minister on 6 June 2023, showing that the Government aims to have the final say on the issue.

The Consolidated appeal

The judgment considers a consolidated appeal on two matters involving foreign nationals legally married to Namibian citizens in same-sex marriages outside of Namibia, with one couple having solemnised their union in South Africa and the other in Germany.

Essentially, the appellants sought declaratory orders, recognising their same-sex marriage as valid marriages. Both appellants had applied for permanent residence permits under the Immigration Control Act (Act) and were denied such application by the Ministry of Home Affairs on the basis that the unions so relied on, were not recognised in Namibia as valid marriages for purposes of the exemption in section 2(1)(c).

A ‘key question’ considered by the Court was whether the refusal by the Ministry of Home Affairs to recognise same sex marriages from foreign jurisdictions involving a Namibian and a non-Namibian is compatible with the Constitution. Amongst other human rights violations, the appellants argued against the infringement of their right to dignity and their right to equality before the law.

Their arguments were premised on the fact that their marriages were validly entered into in foreign jurisdictions, and thus falling within the definition of a ‘marriage’ in its ordinary meaning and in the context of the Act. In particular, the appellants sought an order recognising them as being ‘spouses’ in validly concluded marriages, so as to be included in the interpretation of the word ‘spouse’ in section 2(1)(c) of the Act, exempting such spouses from applying for permanent residence and/ or work permits in terms of the Act.

The benefit of such recognition is obvious. Indeed, a spouse of a Namibian citizen is entitled to reside in and to work in Namibia without the need to obtain the permits otherwise subject to application by non-citizens in terms of the Act.

As alluded to above, the Supreme Court Judgement is split, having concurring and dissenting arguments. The majority, concurring judgement opined as follows:

• In interpreting the rights in the Namibian constitution, the courts are tasked with affording them the widest possible meaning for purposes of protecting the greatest number of rights.
• Where a marriage (irrespective of its Sapphic/ Achillean nature) is validly concluded in foreign jurisdictions, it stands to be recognised for purposes of the Act, as the Act fails to define the word marriage/ spouse, leaving its interpretation open to the ordinary meaning of the word.
• If such marriages stand to be recognised, then the parties to such marriages are spouses for purposes of  section 2(1)(c) and are exempt from applying for permits as required by the Act.

The scope of the judgment

As a settled principle in law, the Supreme Court was only duty bound to determine the issues that were before it. Accordingly, as far as developing the law is concerned, the judgment is restricted to the application of the word ‘spouse’ under section 2(1)(c) of the Act. The LGBTQ+ community remains without the recognition and protection that can arguably be required by a broad and purposive interpretation of our Bill of Rights.

Consequently, the judgement does not necessarily speak to the recognition of same-sex marriages in general, but makes such marriages applicable for purposes of section 2(1)(c) of the Act.

Additionally, despite declaring that same-sex couples, who have concluded a valid marriage outside of Namibia are regarded as spouses for purposes of section 2(1)(c), the majority judgment failed to address whether sexual orientation is included in the prohibited grounds of discrimination in terms of article 10(2), as it relates to equality – leaving that up for determination in another constitutional challenge.

What does this mean for the LGBTQ+ community?

It means nothing has changed in respect of the recognition of the LGBTQ+ community and the recognition of their right to establish a family and have that family recognised and protected by law.

However, where a marriage is concluded in a foreign jurisdiction, the spouses in such a marriage (where one is a peregrines of Namibia) would by virtue of Digashu, be exempt from applying for any permits required by the Act, and would be entitled to the exemption afforded by section 2(1)(c) of the Act.

The Government fights back

A fundamental component of any democratic government is the exercised principle of separation of powers, which requires that one branch of government refrain from interfering in the functions of another.

On 6 June 2023 the Prime Minister, Honourable Saara Kuugongelwa- Amadhila announced that Parliament intends to table a bill which will effectively try to nullify what the Supreme Court found in its majority judgment.

Whether the Government can lawfully legislate on an issue which would conceivably be unconstitutional is unlikely. What is most telling about the statements made by the Honourable Prime Minister is that the Government is desirous of legislating on an issue that is seemingly contrary to a finding of the Supreme Court when interpreting our Bill of Rights, specifically the rights to dignity and equality.

This would threaten the separation of powers in Namibia, a foundation principle of our democracy.
The heated debates speak to the contemporary nature of the issues raised in Digashu.