The Ministry of Home Affairs and Immigration denied the residency permits of foreign nationals married to Namibians in same-sex marriages. The Supreme Court of Namibia found that the denial unfairly discriminated against the couples and infringed on their constitutional right to dignity and equality.
This case involves the denial of requests for residency permits from the Ministry of Home Affairs and Immigration, filed by foreign nationals in same-sex marriages with Namibian residents. Foreign nationals of South Africa and Germany sought to settle in Namibia with their partners after getting married in their home countries where same-sex marriage is recognized. Under section (2)(1)(c) of the Immigration Control Act of 1993, the foreign spouse of a Namibian resident is entitled to live and work in Namibia without obtaining permits for permanent residency and employment. However, the Ministry of Home Affairs and Immigration interpreted the term spouse in the Immigration Control Act to exclude a spouse in a same-sex marriage and denied their requests.
The affected individuals brought a claim against the Ministry of Home Affairs in the High Court to challenge the denial of the residency permits. The High Court found that the Ministry had violated the constitution but dismissed the case due to an earlier decision in the case Immigration Board v. Frank.
The claimants appealed to the Supreme Court for a renewed assessment of the constitutional rights of same-sex couples under the Immigration Control Act. They sought a declaratory relief to order the Ministry of Home Affairs to recognize their respective marriages under section (2)(1)(c) of the Immigration Control Act. Further, the claimants sought an order to declare section (2)(1)(c) unconstitutional.
The Supreme Court found that a marriage properly concluded in a foreign jurisdiction must be recognized according to a well-established principle of common law. The Court reasoned the Ministry had discriminated against same-sex couples by deviating from this general principle without raising any public policy reasons for the distinction.
The Supreme Court also found that the claimants constitutional rights to dignity and equality had been violated by the denial of the residency permits. Under the Namibian Constitution, Article 8 recognizes a right to dignity and a closely related right to equality is recognized in Article 10. According to the court, the Ministry’s differentiation between heterosexual couples and same-sex couples created a “profound impairment of their fundamental human dignity.” To comply with the constitution, the term spouse in the Immigration Control Act must be interpreted to include same-sex spouses lawfully married in another country. Thus, the Supreme Court ordered the Ministry to recognize the claimant’s marriages for the purposes of the Immigration Control Act.
The Court ordered the Ministry of Home Affairs and Immigration to recognize same-sex spouses under the Immigration Control Act. However, the Attorney-General Festus Mbandeka announced in a press release that the government was going to conduct a legal assessment of the decision’s implications before providing an official government response. On June 6, 2023, Prime Minister Saara Kuugongelwa-Amadhila announced in Parliament that the government would introduce a bill to modify the common law principles that enabled same-sex marriages valid in another country to be recognized in Namibia. Ultimately, in late June, the Executive Director of the Ministry of Home Affairs stated that the Ministry will comply with the judgment and acknowledged the independence of the courts.
This case is a landmark decision for the rights of couples in same-sex marriages to live and work in Namibia. Namibia does not recognize the right to same-sex marriage and still has laws condemning homosexuality. This decision opens the door for the expansion of LGBTQI+ rights within Namibia as institutions come to understand the implications of the Supreme Court’s ruling.
For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.
Southern Africa Litigation Centre (SALC)
