Namibia: Precedent for Same-Sex Couples, Rights of Children in Citizenship Ruling

(File photo).

THE Legal Assistance Centre (LAC) says a recent High Court judgement confirming the Namibian citizenship by descent of a child born through surrogacy to a same-sex couple is progressive and demonstrates that the courts are taking cognisance of children's rights.

"Protection of the child, we can see now, that that's paramount and that's a major step. It's a whole new ball game," LAC director Toni Hancox told The Namibian.

Hancox said it has also brought the aspect of parenting for the lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI+) community to the fore.

Furthermore, she said this is the first time an issue of this nature has been before the courts.

"Even though the Lühl matter was about citizenship, it has really brought parenting for the LGBTQI+ community into the limelight. It's something that we'll start talking about," she said.

"I think it might open up the whole LGBTQI+ discussion because this is such a step forward."

The judgement has set a new precedent for the rights of same-sex couples and their children in Namibia, Hancox added.

She was reacting to a judgement delivered by judge Thomas Masuku last week in a case in which a Namibian citizen, Phillip Lühl, fought to have the Namibian citizenship of his and his same-sex partner's son recognised by the government.

The case between Lühl and former minister of home affairs, immigration, safety and security raised questions about institutionalised homophobia.

This was after the home affairs ministry initially refused to acknowledge that the son of Lühl and his partner, Mexican citizen Guillermo Delgado, is a Namibian citizen by descent, and wanted Lühl to prove he is biologically related to his son.

The couple's son was born through surrogacy in South Africa in March 2019.

On the boy's South African birth certificate, Lühl and Delgado are both recorded as his parents.

After Lühl asked the High Court to declare that his and Delgado's son is a Namibian citizen by descent, then minister of home affairs Frans Kapofi wanted the court to order Lühl and the boy to undergo DNA testing to determine the child's biological paternity.

In his judgement, Masuku noted that the minister's position appeared to be informed by the fact that Lühl is in a same-sex marriage with a non-Namibian.

He remarked that Kapofi's request for DNA testing was actuated by discrimination, as the same approach would not have been taken had it been a male-female couple who applied for a citizenship certificate for their child.

Had the boy at the centre of the case been born to a heterosexual couple after a surrogacy arrangement, he had no doubt that the questions which the court had to answer in its judgement "would not even have been conceived, let alone expressed and indeed escalated to the level of court proceedings", Masuku remarked.

He further noted: "Article 10 of our Constitution deals with the right to equality. In this case, I cannot help but note that the insidious attitude of discrimination appears to rear its ugly head. It must be chopped off, even ruthlessly, because it does not resonate with the vision of the founding mothers and fathers of this nation, who conceived Namibia as amongst others, to be a secular state, founded on the rule of law and justice for all."

In a first for Namibia, Masuku concluded that the Constitution's founding principle of "justice for all" applied to all people in Namibia - regardless of not only colour and gender but also sexual orientation, among other attributes.

Children must, regardless of the manner or circumstances of their conception or birth, family background or other circumstances, be given the utmost protection of the law, the judge stated.

"It is grossly unfair to deny them citizenship which they otherwise qualify for because of the nature and circumstances of their birth, or the sexual preference of their parents, and over which the children can exercise no control whatsoever," he said.

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