A married same-sex couple who is seeking permanent residency in Namibia received a partial victory from the country’s Supreme Court last week
The Supreme Court on March 7 presided over a permanent residency case involving Guillermo Delgado and the Home Affairs Ministry.
Delgado, a gay man from Mexico who married Namibian national Phillip Lühl eight years ago in South Africa, approached the Supreme Court last year after Namibia’s immigration officials ruled that their South African marriage did not qualify Delgado for residency in Namibia since the country does not recognize same-sex marriages.
The Home Affairs Ministry also did not consider the fact that Delgado had lived in the country for more than 10 years.
Although the Supreme Court ruled the government had discriminated against their residency application because one of the spouses is foreign-born and ordered the Home Affairs Ministry to review Delgado’s request for residency, his attorney Uno Katjipuka-Sibolile said it was just a lost cause that would eventually bring them back to the Supreme Court.
“Essentially by saying go back to Home Affairs you have to start afresh and we have outlined to the court how Home Affairs has been hostile towards Guillermo, Phillip and the entire family so going back to Home Affairs for what? We know they are going to reject the application except now they are going to pretend to have thought about it a little bit longer then you would have to institute a review application or something and eventually come to the Supreme Court it’s just a waste of time, a waste of money and a waste of energy to be quite frank.
We will just have to study the judgment but this is not what we wanted. The good part is that they recognized that Home Affairs really mistreated Guillermo and ordered punitive cost order like you would have heard they said cost on an attorney client scale so you appreciate that Home Affairs did something wrong but you are sending the person back to Home Affairs it makes no sense to me,” said Uno.
Delgado said he and Lühl they were going to do as the Supreme Court recommended, but nevertheless described it was a daunting task since he was going back to the same process that denied him the residency,
“I feel a little bit disappointed, the application had already been made. I made an application and they rejected it so they (the Supreme Court) are basically telling me I should apply again so it’s unclear to me why I should apply again, I suppose so that they can reject it again and then we are back to square one but there should be some explanation for the judgement,” said Delgado. “So, for now I will just reapply for my domicile and see how it goes.”
Namibia Women’s Diverse Association, a non-profit organization that works with LGBTQ Namibians, said although the Supreme Court judgment was non-fluid per se, it was a step towards ending discrimination based on sexual orientation and gender identity.
“As we celebrate, we are cognizant that the journey to full recognition equality and equity shall be a struggle we are all prepared to advocate for, with no compromise of anyone’s rights,” said the Namibia Women’s Diverse Association in a statement.
A Namibian woman and her German partner, Elisabeth Frank, in 2001 sued to have their relationship recognized so that Frank could reside in Namibia.
The Immigration Board granted the residence permit, and the government appealed to the Supreme Court. The court ruled Frank should receive a permanent residence permit, which she received a year later, but it did not rule in favor of same-sex relationships.
Discrimination based on sexual orientation and gender identity is not banned in Namibia, and households headed by same-sex couples are not eligible for the same legal protections available to opposite-sex couples.
Section 299 of the Criminal Procedure Act of 2004 includes references to sodomy or attempted sodomy charges.
Schedule 1 groups sodomy together with a list of other crimes for which the police are authorized to make an arrest without a warrant or to use of deadly force in the course of that arrest. Public displays of affection between two men can be considered “immoral” behavior, which is punishable under the Combating of Immoral Practices Act of 1980.
Daniel Itai is the Washington Blade’s Africa Correspondent.