Namibia: Challenging refusal to allow same-sex partner to live and work in Namibia

Background

On 20 January 2022, the High Court of Namibia gave judgment in the consolidated cases of Digashu v Government of the Republic of Namibia and Seiler-Lilles v Government of the Republic of Namibia. In both instances, the spouses of the Namibian citizens were denied immigration status on the basis that same-sex marriage concluded outside of the country was not recognized under Namibian law.

In the High Court

The High Court dismissed the applications on the basis that it was bound to follow an earlier Supreme Court decision of 2001. Nevertheless, the High Court made important findings on the rights of same-sex couples. The applicants will appeal the decision.

The High Court held that:

“homosexual relationships are, without doubt, globally recognised, and increasingly more countries have changed their laws to recognise one’s right not to be discriminated against on the basis of one’s sexual orientation. It is time to recognise that homosexuality is part and parcel of the fabric of our society and that persons- human beings- in homosexual relationships are worthy of being afforded the same rights as other citizens.”

The Court further held that:

“in a functioning democracy, founded on a history such as our own, coming from a system of unreasonable and irrational discrimination, to obtain freedom and independence, and then to continue to irrationally and unjustifiably take away human rights of another segment of Namibian citizenry, simply because of their orientation – amounted to cherry-picking of human rights, and deciding whose rights are more “human”, and to be protected, more than others. This is not what our democracy was founded upon.”

In the Supreme Court
On 3 March 2023, the Supreme Court of Namibia heard the two cases and handed down its judgment on 16 May 2023. The court pronounced against the unconstitutional denial of immigration status to non-Namibian spouses in same-sex marriages. The judgment delivered by Judge Shivute CJ set aside the High Court decision of 20 May 2021 and ordered the Government of Namibia to recognise marriages concluded outside Namibia regardless of sexual orientation. The Court recognised Daniel Digashu and Seiler-Lilles as “spouses” as per section 2(1) of Namibia’s Immigration Act No. 17 of 2006. The Court also noted that the differential treatment of the spouses breached the appellants’ constitutional rights to equality and dignity.

Download the Supreme Court judgment here.

Case Timeline

News Releases
20 July 2023 – Namibia’s proposed amendment of the marriage Act – an attack on the rule of law and the judiciary.
16 May 2023 The Supreme Court of Namibia rules that Namibia’s immigration laws must recognise same-sex marriages concluded outside Namibia
16 February 2023 Namibia Supreme Court to hear the appeal on immigration rights same-sex spouses.
19 January 2022 Namibia High Court to pronounce on immigration rights of same-sex partners
20 January 2022 Disappointment and hope as same-sex couples are compelled to approach the Namibia Supreme Court for justice.