Namibia recently witnessed a groundbreaking decision by the Supreme Court regarding the legality of same-sex marriages in the country. The case revolved around two couples: Mr Digashu, a South African citizen who married his Namibian spouse in South Africa; and Mrs. Seiler-Lilies, a German citizen who married her Namibian spouse in Germany. While both Germany and South Africa have full marriage equality, the recognition of their marriages in Namibia posed a significant challenge.
Under Namibian immigration law, the foreign spouse of a Namibian citizen is granted the right to live and work in Namibia without needing to apply for an employment visa or permanent residence permit. However, Mr Digashu's application for an employment visa was denied, as was Mrs. Seiler-Lilies’ application for a permanent residence permit. In separate proceedings, the appellants argued that the ministry’s practice infringed on their constitutional rights. They first approached the High Court to review the decision of the Ministry of Home Affairs and Immigration to refuse their applications on the grounds that their same-sex marriages were not recognised in Namibia. Then, they approached the Supreme Court on appeal.
According to common law, a marriage legally concluded in accordance with the statutory requirements in a foreign jurisdiction is recognised in Namibia. The term “spouse” is not defined in Namibia’s Immigration Control Act and therefore refers to the ordinary usage of the term, including same-sex marriages validly contracted outside Namibia.
Considering how the ministry had failed to advance any public policy considerations as to why the appellants’ marriages should not be recognised in accordance with the principles of general common law, the court determined that the appellants’ marriages ought to have been recognised in terms of the Immigration Act, thereby exempting the foreign spouses from needing to apply for an employment visa or permanent residence permit.
The right to dignity is at the heart of the Namibian constitutional framework, and relates closely to the right to equality. The right to dignity is an inviolable one, and there can therefore be no exceptions. Therefore, the court emphasised that it is its duty to protect these constitutional rights.
The court also determined that the impact of the differentiation made by the ministry between heterosexual marriages and same-sex ones had no rational connection to a legitimate statutory objective, which was far-reaching and potentially devastating. The court emphasised that the result of the differentiation by the Ministry led to a profound impairment of the fundamental human dignity at a “deeply intimate level of their human existence.” The court also highlighted the importance of equality with reference to the shared history of discrimination in South Africa and concluded that the Ministry’s practice infringed both the appellants’ interrelated rights to dignity and equality.
In the end, the court ruled that the appellants were spouses for the purposes of the Immigration Control Act, given their validly concluded marriages abroad.
It is important to note that the court was careful to qualify that the laws relating to marriage in Namibia were multifaceted, and addressed in a wide range of legislation. Accordingly, this judgment could only address the recognition of spouses in same-sex marriages for the purpose of section 2 (1) (c) of the Immigration Act and would be confined to the Act. The court, however, left the door open to future constitutional challenges, noting that further constitutional protections relating to marriage equality must await determination when those issues are raised.
In Namibia’s Marriage Act, the word “spouse” is only referred to for the purposes of divorce proceedings. Marriage is otherwise referred to as occurring between the gender-neutral term “the parties”. As the Digashu judgment hinges upon the word “spouse”, it accordingly would find little application here. However, the judges have made many comments regarding the importance of the Supreme Court in safeguarding the fundamental rights and freedoms enshrined in the Constitution. This, combined with the comments made regarding the inviolability of the inherent dignity marriage equality awarded same-sex couples, may be the foundation of future litigation.
While this judgment only expressly applies in the context of immigration law, it is a hopeful, spirited judgment that could mark the beginning of a new era of rights protection in Namibia for the LGBTQI+ community.
Vanessa Boesak
Executive
Marsha Shaanika
Candidate Legal Practitioner