Analysing the case of Digashu and Others v Government of the Republic of Namibia, Seiler-Lilles v Government of the Republic of Namibia
On 16 May 2023, The Supreme Court of Namibia ruled that Namibia’s immigration laws must recognise same-sex marriages validly concluded outside Namibia, setting aside the High Court decision of 20 January 2022. Background In August 2017, Daniel Digashu, a South African Citizen and Johann Potgieter, a Namibian citizen, approached the High Court of Namibia after the Ministry of Home Affairs and Immigration denied Digashu, a South African citizen, a work permit based on their same-sex marital status. Similarly, Namibian-born Anete Seiler and German-born Anita Seiler-Lilles approached the High Court of Namibia after Anita was denied permanent residence based on their marital status. The High Court, comprised of three judges, dismissed their applications. The High Court held that the Constitution of Namibia prohibited discrimination based on sexual orientation; however, it could not grant the couples’ applications because of a 2001 judgement by the Supreme Court of Namibia in Immigration Selection Board v Frank, which refused to recognise the rights of same-sex partners under the Immigration Act. The High Court criticised the discrimination that was levelled at the Applicants and the earlier judgement of the Supreme Court; however, it felt bound by the Supreme Court decision. Supreme Court The Appellants argued that the facts in the Frank case differed in that their relationship was not recognised in terms of the law. The applicants in the Frank case were in a long-term committed relationship, whereas in the case of Digashu and Seiller-Lilles, the Appellants’ relationships were valid regarding the law of the countries they were respectively concluded in. The right to dignity The Supreme Court of Namibia’s landmark decision to support the right to dignity for same-sex couples was a significant moment in the ongoing battle for equal rights. The Supreme Court held that denying the recognition of the Digashu and Seiller-Lilles’ respective marriages violated the right to human dignity. The court stated that the Constitution of Namibia guarantees the right to dignity to its people and does not exclude based on one’s sexual orientation, gender identity and expression. The court added that the fact that this is outlined in Article 8 of the Constitution meant that it is constitutionally binding and relates to the protection of other rights. The Supreme Court’s decision was based on the principle that all Namibians have the right to human dignity under the law. This was also rooted in the idea that marriage is a fundamental right essential to the pursuit of happiness. Although same-sex marriages cannot be legally performed in Namibia, the Court held that denying the recognition of same-sex marriages concluded lawfully outside the country violated the applicant’s constitutional rights and was a form of discrimination that had no place in modern society. The Supreme Court’s decision was a watershed moment that signalled a new era of acceptance and equality for Namibia’s LGBTIQ+ community. The right to equality The Supreme Court further affirmed the right to equality for LGBTIQ+ persons. It held that the Ministry’s approach infringed on the right to equality. The Court declared that ‘spouse’, in the context of the law, includes same-sex couples. The right to equality is a fundamental human right, ensuring everyone is treated equally under the law. It is a cornerstone of democracy and is essential for protecting human dignity. In Namibia, the right to equality is enshrined in the Constitution. However, despite these legal protections, discrimination still exists in many forms and affects various marginalised and vulnerable groups, such as same-sex couples. The Supreme Court has played a critical role in interpreting and enforcing the right to equality in the Digashu, Seillers-Lilles judgment. The Court interpreted the law and applied it to the specifics of this case to ensure that applicants are treated equally, giving precedence for future equality matters. The Supreme Court’s reasoning for granting equality is based on several fundamental principles. Firstly, the Court recognises everyone is entitled to the same legal protections. No one should be discriminated against based on their race, gender, sexual orientation, gender identity or any other characteristic. The Court further recognises that stigma and discrimination can take many forms and are influenced by one’s particular characteristics and identity. This is evident when a law or policy appears neutral but disproportionately impacts a specific group, as seen in the Digashu, Seiller-Lilles matters where the Ministry denied the applicants the right to equality based on their same-sex marriage status. The Court also recognises that the right to equality is about protecting individual rights and promoting social cohesion. Stigma and discrimination can lead to social fragmentation and undermine the stability of society. By promoting equality, the court is helping to build a more cohesive, diverse, and stable community. This is also based on a deep understanding and interpretation of the principles of democracy and respect for human rights. The Court proclaimed “the recognition of the inherent dignity and the equal and inalienable rights of all members of the human family as indispensable for freedom, justice and peace.” Public opinion The Court noted that the majority often influences public opinion, and elected officials express these views in Parliament. The court said it was the duty of the court to fulfil the constitutional rights of all people, including the minority groups such as LGBTIQ+ people. The courts must ensure, independently, that such groups are protected from stigma and discrimination and are afforded their constitutional rights. If the Courts only relied on the majority’s opinions, there would be inconsistencies in who can and cannot be protected and recognised under the law. Recognition of same-sex families The State argued that in line with the doctrine of precedent, the term “family” does not include homosexual marriages. Regarding the Act and the Constitution, marriage is a union between a man and a woman. They further argued that sexual orientation is not listed as grounds for prohibited discrimination and that equality before the law does not mean equality for each person’s relationships. The Supreme Court stated, in its decision, however, that in addition to ‘spouse’ not being defined as either a man or woman, neither is marriage. It held that any marriage legally concluded outside Namibia must be recognised per the law. The Supreme Court noted that the facts in Frank were indeed different from the facts in the Appeals and that the statements made by the Court in that case that “equality before the law for each person does not mean equality before the law for each person’s relationship”, were incompatible with the right to equality, and that it also fails to take into account the human worth and dignity of all human beings including those in same-sex relationships, which is at the core of the equality clause. It further held that the general principle of common law that if a marriage is concluded under the legal requirements for a valid marriage in a foreign country, it falls to be recognised in Namibia and that that principle applied in this matter. The Court held that the Ministry should have recognised the appellants’ respective marriages and that Mr Digashu and Ms Seiller Lilles are to be regarded as spouses for purposes of the law. The Court went on to State that the Ministry, by excluding a spouse in a same-sex marriage from inclusion within the term of “spouse”, infringed on their right to dignity and equality. In a dissenting judgment by Justice Mainga JA, the judge states that the Court had overstepped its bounds and had effectively redefined marriage. The judge further notes that the majority decision attacked traditional norms and values and threatened to undermine the institution of marriage itself. The dissenting judgement shows that there may be resistance to equal treatment of LGBTIQ+ persons. The silver lining is that four other justices recognised that the Constitutional values of Namibia promote and protect the rights of queer persons. Developments since the judgement Following the passing of the judgement by the Supreme Court, there was emerging backlash from some members of the public and politicians. On 11 July 2023, the National Assembly of Namibia passed a private member’s bill, which aimed to redefine the term spouse, and amend the Marriage Act. The bill was introduced with reference to Articles 81 and 45 of the Namibian Constitution to “contradict a decision of the Supreme Court of Namibia”. The proposed bill contradicts the Supreme Court’s Digashu, Seillers-Lilles’ decision. The bill was also discussed and approved by the National Council of Namibia and was sent to the President for assent but was sent back for further consultation. The bill proposes that no marriage between persons of the same sex shall be recognised as a valid marriage in Namibia and that anyone in a same-sex marriage will not be regarded as a spouse for purposes of any law in Namibia. The Marriage Act amendment states that marriage “means a legal union between persons of opposite sex”. Importance of this case The judgment has taken a significant step forward by recognising same-sex marriages conducted legally outside Namibia. This decision will significantly impact various aspects of the law and advocacy, including human rights, family law, and equality. This decision is a milestone towards equality and human dignity. This decision positively impacts the future of the LGBTIQ+ community and society. It has the potential to promote acceptance and diversity and pave the way for a more inclusive and equal Namibian society. It further reflects the changing attitudes and values of the Namibian society towards LGBTIQ+ people. This decision is a significant step towards recognising LGBTIQ rights in Africa, particularly considering the current regression and extreme anti-LGBTIQ sentiments elsewhere. The High Court and Supreme Court sentiments, respectively, show that there has been a change in approach around LGBTIQ+ rights within the judiciary since the 2001 judgement. In affirming that the terms spouse and family in terms of the Act include persons in same-sex relationships, the Court has moved from its previous jurisprudence to a jurisprudence that interpreted equality in a purposive right-giving manner. It will also positively impact the mental health and well-being of LGBTIQ+ people, who have long faced stigma, discrimination, and prejudice. The judgment is a blueprint for the role of the Courts in upholding fundamental human rights and promoting equality. The courts have played a crucial role in the fight for LGBTIQ+ rights and recognition, and this ruling will serve as a precedent for future equality cases and help shape the country’s laws, policies and practices towards equality and human rights. Namibia still criminalises consensual same-sex sexual activities between people of the same gender in terms of its Roman-Dutch common law, with the Criminal Procedure Act outlining procedures for punishment, although such prosecutions are rare. Access more information on the case here. By Bradley Fortuin and Thabo Buthelezi.