Home affairs defends anti-gay stance

08 November 2021 | Justice

Windhoek • [email protected]

The Home Affairs ministry has acknowledged that their approach to an application for citizenship by descent for the two-year-old son of a Namibian citizen was influenced by the parent’s same-sex marriage status.
“In approaching the application by the respondent differently from other heterosexual persons, the Minister gave expression to the non-recognition of gay stance in Namibia [sic],” a notice of appeal to the Supreme Court by the ministry states.
On Friday, the ministry gave notice that they are appealing the 13 October landmark decision by High Court Judge Thomas Masuku, who granted citizenship by descent to the two-year-old son, born via surrogacy in March 2019, of Namibian Phillip Lühl.
The surrogacy agreement was green-lit by the South African courts and a valid South African birth certificate issued, identifying Lühl as Yona’s parent, alongside Guillermo Delgado, Lühl’s Mexican born husband.
The ministry’s appeal argues that it did not violate the family’s right to non-discrimination, because in Namibia’s constitution “sexual orientation is not one of the listed grounds of discrimination”.
The appeal argues further that while South Africa recognises “parents in gay relationships, Namibian constitutionalism is different. It does not countenance homosexual or gay relationships.”

No discrimination
The ministry’s appeal dismisses Judge Masuku’s argument that a DNA test was not in the best interest of the child.
“Quite the contrary, the minister’s stance is to bind them together on the footing that they are indeed so connected - by asserting a genetic link.”
The ministry argues further that denying Namibian citizenship to the boy, would not impede the child’s rights, as he would not be left stateless. “He has a parent of another nationality who is a Mexican.”
Moreover, the appeal states the Namibian constitution is gender specific, and refers to “fathers and mothers”, not a parent, as Lühl is identified on the birth certificate.
The Home Affairs ministry is also arguing that in the absence of a surrogacy law, parliament should be the decision making body, not the courts.
“The court effectively trespassed on the terrain, the policy decision making terrain, which is traditionally reserved for legislature or parliament to pronounce on.”

Tax funded appeal
News of the appeal was in turn praised by some Namibians who do not support equal rights for the Namibian LGBTQ community, but also met with stinging criticism from many others.
“Our government is fighting a two-year-old,” a social media user posted on Friday. “We seriously have money to waste on these appeals?” another asked.
Many questioned the use of tax payers’ money, including the appointment of pricey South African solicitors to fight the matter at the Supreme Court.
“A grotesque move by the ministry, who blatantly disregarded Judge Masuku’s verdict, calling out their unconstitutional discrimination,” the Namibia Equal Rights Movement said in a statement on Friday.
The movement called on Namibians to join a protest march in Windhoek on 15 November.
“This is state funded persecution. The ministry of home affairs has become a ministry that is determined only to protect and serve heterosexual Namibians. The Constitution is clear, that all Namibians are entitled to dignity, justice and equality,” the organisation stated.
The rights organisation added that the appeal “shows an abuse of power at the expense of taxpayers, to target the LGBTQ community and their families”.

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