Family’s fate in court’s hands
26 March 2021 | Local News
The fate of new-born twins Paula and Maya Lühl Delgado who have been prohibited from entering Namibia with their Namibian father, now rests in the hands of Windhoek High Court Judge Thomas Masuku who will deliver judgment on 19 April.
The judgement date means Phillip Lühl and his newborn daughters have to remain in South Africa for at least another 25 days, forcibly separated from their family in Namibia who has been eagerly awaiting their return, including Lühl’s 2-year-old son Yona, his husband Guillermo Delgado and the twins’ grandparents.
Masuku on Thursday presided over the urgent application brought by Lühl, a Namibian citizen, who is asking the court to compel the Ministry Home Affairs to issue travel documents to allow him to bring his daughters home.
Minister of Home Affairs Frans Kapofi has refused to issue travel documents to the twins, saying – in a first for Namibia – that Lühl undergoes a genetic test to prove his biological relationship with his daughters; this even though he and Delgado are identified as the parents of the twins on South African birth certificates.
Masuku acknowledged on several occasions on Thursday that, legal jargon aside, at the heart of the matter before the court is to decide what is in the best interest of the children.
Representing Lühl, Unomwinjo Katjipuka-Sibolile of Nixon Marcus Public Law Office, said the matter before court raises the question of “what kind of society we want to live in and aspire to”.
She argued that while the minister and his officials have denied that their decision was related to the parents’ gender, it was a clear case of discrimination that they justified with their genetic link request.
Katjipuka-Sibolile underlined that internationally-issued birth certificates have always been accepted by the Ministry of Home Affairs in cases where parents want to obtain travel documents or other immigration documents for their children. “The only reason biology is questioned in this case is because the parents are two men.”
She told the judge that the “strange” arguments made by the Minister of Home Affairs that DNA testing is required, and to ignore the South African birth certificates, was an attempt at hiding the true basis for their conduct and “political manoeuvring”.
She stressed that the rights and welfare of the children, as per the constitution, the child welfare and protection act, and numerous international conventions, should be the primary factor in deciding whether to allow them to come home with their father.
She said the minister and his officials have ignored the consequences of their decision on the wellbeing of the infants. “If he had, he would have understood that regardless of the judgment awaiting in the case of their brother, two children are involved. This requires that he places the children's rights and wellbeing first.”
She said it is unclear what the ministry hoped to achieve by banning the twins; entry into Namibia.
Katjipuka-Sibolile added that if the twins can return home, the issue of their nationality by descent can be clarified later, as the family awaits judgment in a case brought by Lühl and his husband on behalf of their toddler son, who they want to have declared a Namibian by descent.
Government lawyer Jabulani Ncube denied the ministry’s decision constituted discrimination and argued that the ministry was simply following the laws of the country. “The law is the law. We are standing by the law,” he told the court.
He argued that while the best interest of the child was important, “we must look at the laws”. He argued further that a DNA test would be in their best interest “to know who they are”.
He alleged that had Lühl and his husband followed proper channels and launched an application with the ministry, the outcome of the decision could have been different. He failed to explain on what basis.
Ncube argued that while the South African birth certificates identified the parents of the twins, these documents must be considered alongside the circumstances of their birth to a surrogate.
The court will also take into account an affidavit submitted by minister Kapofi, in which he said the ministry had not been provided with “sufficient scientific evidence to show that [Lühl] is the father” of either his older son Yona or the twins.
He said the ministry refused to take the South African birth certificates into account, as Namibian law “requires a mother and a father. This is why a DNA test becomes a prerequisite for the applicant and minor children.”
He argued that this is “not discriminatory per se.”
Ministry of homophobia
A peaceful protest march took place before court proceedings on Thursday, demanding that the Minister of Home affairs allow the twins and their father to return to Namibia. The marchers accused the ministry of discrimination, violation and harassment against the LGBTQ community in Namibia.
“The Namibian Equal Rights Movement was launched on Independence Day. It is sad that we had to launch this movement 31 years after Independence, to still fight for equality in this country,” activist Omar van Reenen said.
The marchers also handed over a petition to the ministry that garnered more than 3 000 signatures and titled ‘LGBTQ Families Belong Together: #BringPaulaAndMayaHome’.
“Now, 31 years after apartheid, we still have ministries that are abusing their power to abuse free love,” van Reenen said.
He described this stance as “pathetic, grotesque and frankly, disgusting”.