Namibia: Minister Takes Anti-Gay Stance in Appeal
Namibia’s Constitution does not protect residents of the country from discrimination based on their sexual orientation, the minister of home affairs, immigration, safety and security is arguing in an appeal notice filed at the Supreme Court on Friday.
Sexual orientation is not one of the listed grounds on which the Constitution forbids discrimination, and the minister was entitled to approach the case of same-sex couple Phillip Lühl and Guillermo Delgado differently from those of other, heterosexual couples when Lühl applied for the registration of their son’s Namibian citizenship, it stated in the appeal notice.
The notice sets out the grounds on which the minister is appealing to the Supreme Court against a High Court judgement in which he was ordered on 13 October to issue a Namibian citizenship certificate to the two-year-old son of Lühl and Delgado.
The couple’s son was born through surrogacy in South Africa in March 2019.
On the boy’s South African birth certificate, both Lühl, who is a born Namibian, and Delgado, who is Mexican, are recorded as his parents.
Judge Thomas Masuku declared that the couple’s son is a Namibian citizen by descent and ordered that the minister should issue the boy with a Namibian citizenship certificate.
In his judgement, Masuku said Namibia was established as a state founded on the rule of law and justice for all. That justice for all, he said, “applies to all people in Namibia, regardless of colour, gender, sexual orientation, etc”.
He also stated that the “insidious attitude of discrimination appears to rear its ugly head” in the case before him.
In the minister’s appeal notice, it is argued that Masuku “adopted a peculiar, but plainly wrong reading” of the Constitution and the Namibian Citizenship Act of 1990.
The Constitution states that a child whose father or mother is a Namibian citizen would be a Namibian citizen by descent – but on his son’s birth certificate, Lühl is recorded as one of the two parents of the boy and not as father, it is said in the notice.
It is argued that the judge made a mistake in interpreting the term ‘father’ to include the generic term ‘parent’.
Namibia’s Constitution differs from that of South Africa, it is also argued in the notice: “It does not countenance homosexual or gay relationships.”
It is further argued that in terms of South Africa’s Children’s Act, under which Lühl and Delgado made a surrogacy agreement which led to the birth of their son, one of the parents of a child born through surrogacy has to be the biological parent of the child, and that Masuku wrongly rejected the minister’s application for Lühl to be compelled to have DNA testing done to determine if he is the genetic father of his and Delgado’s son.
Namibia does not accept surrogacy agreements, it is stated as well in the appeal notice.
The notice concludes with a statement that it is not the minister’s stance to separate Lühl and Delgado’s son from his father or mother. The minister’s stance “is to bind them together […] by asserting genetic link”.
The boy is living with Lühl and there is no attempt to rip him away from his current living environment, it is stated further.
Lühl “seeks more than mere living together with the child; he seeks a status of citizenship for the child”, the appeal notice reads, before concluding: “That is a different matter.”
MIXED REACTIONS
Namibia Equal Rights Movement founder Omar van Reenen on his social media account over the weekend said the movement will be protesting against the appeal under the #statesanctionedHomophobia today.
Van Reenen could not be reached for comment yesterday.
Gender and human rights activist Linda Baumann of the Namibia Diverse Women’s Association yesterday said: “Protesting is not going to change the justice system, it’s not going to impact the process of the appeal.”
By Namibian.
