Namibian Government Appeal is a Failure to Decolonize Sexuality

“By appealing the case, the Government in effect is propping up colonization and the tenets of Apartheid, weaponizing by robbing a small toddler of his rights.” Melanie Nathan

I will be having a discussion on Namibian Press social media channels on Friday 12th – please see Facebook/ for details – stay tuned Republikein and Namibian Sun. This case involved a toddler who in a groundbreaking case was given citizenship by descent re surrogacy and two dads, a Namibian parent. The Namibian Government is appealing and so fighting progress – all the while risking the tenets of surrogacy and adoption even for heterosexual parents.

Namibia’s benchmark decision in the case of Luehl v Minister of Home Affairs and Immigration granting a toddler citizenship through descent of its parent (Oct 13, 2021) has been appealed by the Namibian Government. Today I was interview by the Namibian Press and here are my thoughts about the case:

Facts of Case:

Judge Masuku held, in favor of the child being granted citizenship by descent, rejecting the idea that a paternity test is necessary. There are a host of issues and legal arguments surrounding this complex case.

Without getting deep into it all and the nitty gritty of the case and the appeal: Here are my thoughts 1) About the landmark decision and what it tells us and 2) About the Government responsive appeal and what that tells us:

The Namibian Judiciary is independent from other branches of Government. While Government seems to fear reform of law and progress and more importantly decolonization of sexuality and gender identity, the Court is able to establish that reformative and restorative path.

Judge Masuku, took an approach that favors the best interests of the child and crafted his ruling on a wide interpretation of the Namibian Constitution that takes cognizance of progress and justice, noting “law and justice must coincide”. Discrimination can never be just:

“The Court must give purposive interpretation to the Constitution, and one that will be elastic and flexible and adaptive of changing norms, beliefs and practices in society. It would accordingly be a travesty to give the words in the Constitution a narrow and pedantic interpretation.”

In effect the ruling calls out discrimination and does not reject the same-sex marriage solemnized in South Africa – allowing for the fact that both parents are on the child’s birth certificate as propelled by a South African Court order that legitimates the Surrogacy Agreement.

What stands out for me in the RULING is that the Judge reminds that Namibia is a secular country. This is a profoundly important acknowledgment and validation of the separation of church and state. Let us face facts – the ONLY reasoning standing in the way of full equality for LGBTQI people, children impacted and any couple whether same-gender or different-gender is religious dogma and belief. Without religion there is no argument posited for gays to be denied their equal civil rights. This could set the tone for future cases that could serve as precedent law. No where does the Namibian Constitution specifically outlaw same-sex marriage.

The Preamble to the Namibian Constitution where it notes:

Whereas the said rights include the right of the individual to life, liberty and the pursuit of happiness, regardless of race, colour, ethnic origin, sex, religion, creed or social or economic status; Whereas the said rights are most effectively maintained and protected in a democratic society, where the government is responsible to freely elected representatives of the people, operating under a sovereign constitution and a free and independent judiciary; Whereas these rights have for so long been denied to the people of Namibia by colonialism, racism and apartheid;

A now independent Namibia, once a South African protectorate, was also colonized and subject to the laws of Apartheid. Namibia, through this case and others soon to follow, is now poised to follow through on rejecting colonialism and apartheid. The Constitution insists upon it. The New South African Constitution followed the Mandela assertion that “never never never again will South Africa be the skunk of the world.” The latter assertion meant that ALL must be fully free and equal including LGBTQI people. And so South Africa’s new constitution provided for full equality.

By appealing the Government, in effect is propping up colonization and the tenets of Apartheid, weaponizing robbing a small toddler of his rights.

The Government notes the Statute refers to “Fathers or Mothers” as being a requirement on the birth certificate that is required for citizenship by descent. However the SA birth certificate of the toddler refers to the two fathers as PARENT and PARENT. Hence according to the government the Judge erred in the law by not sticking strictly to Fathers and Mothers. If we are to get truly pedantic, surely we would note that FATHERS or MOTHERS actually refers to a plural!

Then the Government says its approach is in the best interests of the child. The idea of a paternity test is in the best interests of the child. How can denying the child’s right to having his two fathers termed “PARENT” on a birth certificate – leading to a refusal of citizenship through one parent, be construed as in the child’s best interests?

The Government is actually disputing the parentage of two fathers which is contrary to the facts. The child has two fathers. The birth certificate says so. All procured legally through a South African Court ordered surrogacy agreement. Here we speak to Comity of States! Deny this and imagine the consequences and backfire potential!

How can one deny that this two year old has two dads and has every right in having 2 fathers to be treated the same as any other child applying for citizenship by decent through parents. Nowhere would a straight couple, reflected on a birth certificate, in a surrogacy situation be asked to take a DNA test. What if both straight parents were on the birth certificate and a sperm donor had been used in the surrogacy – would that qualify to preclude citizenship from descent? In fact the Government argument has a serious risk of backfiring to hurt surrogacy and adoption for all families in Namibia, whether straight or gay.

Talk about best interests of the child: Would that include leaving a child stateless? What I find so outrageous is the Government notion that the child would not be stateless if citizenship through the Namibian parent is rejected, because the second dad is a Mexican citizen. How absurd is that? Suggesting – take your kid’s citizenship rights to Mexico – ! What if Mexico rejects on precisely the same terms as suggested by the Namibian government – then the child would be stateless. How can the Namibian Government pretend to make a determination for a foreign sovereign government.

TO READ THE JUDGEMENT AND THE APPEAL GO HERE:

 

Melanie Nathan 
Law, Human Rights Advocacy and Mediation
pronouns: she / her / hers

 


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