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Supreme Court Same-Sex Ruling Doesn’t Change Marriage Laws


By:Hertha Ekandjo
The Supreme Court on Tuesday recognised same-sex marriages between citizens and foreign spouses contracted abroad.
This judgement, according to lawyer Halwendo Nafimane, does not mean that same-sex spouses can buy property as one, or inherit each other’s properties when one passes.
According to him, the judgment relates to the recognition of same-sex marriage concluded outside Namibia for immigration purposes only.
“The judgement is only limited to the question of immigration. It does not mean that it will change all the laws for instance that prohibit same-sex marriage recognition in other aspects of the law,” the lawyer explained.
Nafimane further explained if there is an Act such as the Marriage Act that says that marriage in Namibia is only between a man and a woman, that law still stands as an existing and valid law.
“What that means is that people of the same sex who get married in South Africa or Germany or elsewhere, for purposes of immigration are not required to apply for any special permit. Automatically they are regarded as a spouse,” said Halwendo.
According to him, the significance of this judgement is that it regards or compels the government to recognise same-sex marriages outside of the country for purposes of immigration.
The Supreme Court’s decision overturned a ruling reached last year by the High Court, which refused to accept same-sex marriages concluded outside Namibia.
Two Namibian nationals had sought recourse from the courts after the ministry of home affairs and immigration refused to grant permits to same-sex foreign spouses whom they had married outside the country.
“This Court accordingly found that the approach of the Ministry to exclude spouses, including the appellants, in a validly concluded same-sex marriage… infringes both the interrelated rights to dignity and equality of the appellants,” the ruling said.
Annette Seiler, who is married to German national Anita Seiler-Lilles, brought the case along with Namibian citizen Johann Potgieter and his South African husband, Matsobane Daniel Digashu.
Their marriages were respectively concluded in Germany and South Africa has seen a flurry of court cases on the rights of same-sex couples to marry
Homosexuality is illegal in Namibia under a rarely-enforced 1927 sodomy law dating to its period under South African rule.
South Africa, under its liberal post-apartheid constitution, is the sole African nation that allows gay marriage, legalised in 2006.
In March this year, the same paramount court overturned a decision by a lower court to grant citizenship to a gay couple’s four-year-old son who was born in neighbouring South Africa through surrogacy.
The Supreme Court in its judgement further urged parliament to take up the matter, stating that parliament cannot keep quiet for too long on the issue.
“It will have to regulate the issue in one way or another. The claim to same-sex relationships is now here and Parliament which is best placed to assess and respond to that need should arise and act in terms of its Constitutional mandate,” the Court said.
Meanwhile, human rights activist Linda Baumann statds that the Supreme Court’s ruling clearly indicates that Home Affairs carries the responsibility to recognise same-sex marriages which took place abroad.
“That initially says that all marriages taking place, even if it is same-sex, need to get equal recognition in this country. As a movement we have been working very long and hard to be able to affirm recognition in this country, because we haven’t even heard any leader that could stand on the podium and say we recognise LGBTIQ,” Baumann told The Villager.
Baumann further stated that there is a need to take note of the fact that the Namibian legal framework will be impacted by the ruling which came out because the Marriage Act is clear when it comes to opposite sex in matrimony.
“We also know, as a movement, as much as we are celebrating all those who are married outside the country, and who live in this country can now at-least access to recognition of their marriage, however, we also know the anti-LGBTI movement in the country profoundly the religious groups and also social settings that are anti would initially come and argue their wave within it.
“We also know judgments that are made also like this judgement will impact the legal framework in the country in terms of giving service but also giving recognition when it comes to principles of equality,”Baumann said.

Hertha Ekandjo

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