A small step forward for human rights as Namibia’s Supreme Court grants recognition to same-sex marriages from overseas

In extraordinary and unexpected news, Namibia’s Supreme Court has granted recognition to same-sex marriages conducted overseas putting in doubt the validity of colonial era sodomy laws that, although unused, remain on the statute books since 1927.

“We are a country where we are included, we are a country of belonging, we are a country of the brave,” chanted a group of LGBTQ+ rights activists in front of the Supreme Court of Namibia on Tuesday, effectively recognising that the word “spouse” is not associated with any specific gender after judges ruled that the country’s immigration laws must recognize same-sex marriages concluded outside the country.

Four of the five justices hearing the appeal agreed that “The term ‘spouse’ in s 2(1)(c) of the {immigration} Act is to be interpreted to include same-sex spouses lawfully married in another country.”

Human rights lawyer Norman Tjombe explained that the ruling neutralizes the term, and “spouse” will no longer only apply to a partner of the opposite sex.

“There’s nothing special, nothing extra that needs to be done compared to heterosexual marriages. Whatever you need to do for a heterosexual marriage is also what you would have to do for a homosexual marriage,” said Tjombe.

The ruling stems from a case involving Daniel Digashu (a South African citizen) whose work permit and immigration status were denied based on his same-sex marital status to Namibian citizen Johann Potgieter in 2017. The two got married in 2015 in Johannesburg, South Africa and adopted Digashu’s nephew after Digashu’s aunt (the boy’s mother) died in 2014.

Another similar immigration case involves Annette Seiler who married German national Anita Seiler-Lilles in 2019 in Germany.

The two cases, including the immigration status of the child adopted, were consolidated.

However, on January 20, 2022, the High Court of Namibia dismissed the immigration cases but granted immigration status to the minor.

Until Tuesday, Namibia did not recognize same-sex marriages because homosexuality is illegal under the Sodomy Law of 1927.

Namibia’s first democratically elected president, Sam Nujoma, has on numerous occasions described gays and lesbians as “unnatural”.

At one point, he called on the police to arrest, deport, and imprison them, describing their sexual preference as a “foreign influence.”

The ruling drew mixed reactions in a relatively conservative country where over 90% of the population is Christian.

“We welcome this judgment. Human rights should be upheld even when society is against it. Human rights should never be a popularity contest,” said local lawyer Kadhila Amwoomo.

Political analyst Nduma Kamwanya believes that same-sex marriage will do no harm to the country.

“Same-sex marriage will not bring Namibia down, nor has it brought any country down. If anything, corruption and mismanagement are what will bring us down,” he said.

The minority political party, the Namibian Economic Freedom Fighter (NEFF), is calling for a national referendum on the matter.

The party believes that the Supreme Court is forcing cultural views that are foreign to the country and its citizens because the couple is of foreign descent.

Namibian gay rights activist Wendelinus Hamutenya, who is also in a same-sex marriage, was ecstatic about the ruling.

The former Catholic altar boy comes from the Aawambo tribe, which violently assaults boys suspected of being gay applying burning coal to their backsides in a medieval attempt to “correct” their behaviour.

Hamutenya married his spouse, who is also Namibian, in a Dutch Reformed Church in Pretoria, South Africa five years ago. South Africa became the fifth country in the world, and the first in Africa to legalise same-sex marriages in 2006.

“Many of my relatives looked at us differently, but now they can see our marriage is the same as heterosexual marriages,” he said.

Court ruling opens doors for other illegal issues

According to Tjombe, although the Tuesday ruling was not part of the judgment, it inadvertently throws out the sodomy law.

Sodomy is a criminal offense in the country, although no one has ever been convicted of such a crime.

“How does it remain a criminal offense that, since yesterday (Tuesday), at least couples who are married in another country in the same-sex marriage can come to Namibia and live here, and that marriage is recognized now as part of the marriage? Part of the things that are recognized when marriage is the conjugal rights and that obviously includes sexual intercourse.

“So since at least yesterday, my interpretation is that sodomy would be allowed, at least insofar as it concerns people who are married in same-sex marriages,” he said.

According to him, the ruling also opens doors to polygamous marriages conducted outside the country.

“The Immigration Act simply says ‘spouse.’ So you will come and say the law in Iran says I can get married to up to four women. The wives are entitled to stay in Namibia,” he said.

Ester Mbathera