Judge slams home affairs’ homophobia
19 October 2021 | Justice
High Court judge Thomas Masuku has taken aim at Home Affairs’ discrimination against same-sex couples in his judgment granting citizenship to the Namibian son born via surrogacy to a same-sex couple.
“I cannot help but note that the insidious attitude of discrimination appears to rear its ugly head in this matter. It must be chopped off, even ruthlessly, because it does not resonate with the vision of the founding Mothers and Fathers of this Nation, who conceived Namibia as amongst others, to be a secular State, founded on the rule of law and justice for all.”
Masuku also stressed that the insistence of a DNA test to prove paternity, by former minister of home affairs Frans Kapofi, was “actuated or informed by discrimination and should fail”.
He added that “of course the minister denied” that discrimination played a role in the case, but “it is sometimes actions rather than words that determine whether or not there is discrimination”.
Masuku’s comments formed part of his full judgment released Tuesday afternoon, following his landmark announcement last week compelling the home affairs ministry to grant citizenship to the two-year-old son of Namibian Phillip Lühl on behalf of his two-year-old son.
Masuku ordered the ministry to pay all costs in the case, noting that the “minister has been unsuccessful in both his opposition and attack”.
Masuku said had the child been born via a surrogacy agreement “to a heterosexual couple, the respondent (home affairs) would not have required the application to undergo DNA tests to prove the paternity of the child”.
He added: “I have no doubt in my mind that the questions the court is answering would not have even have been conceived, let alone expressed and indeed escalated to the level of court proceedings.”
He said the home affairs ministry’s “vehement opposition” to grant citizenship by descent to Yona Delgado-Lühl, was informed “by the notorious fact that the applicant is in a same-sex marriage.”
The judge also noted that Kapofi “poured scorn over the allegations that his stance infringed on the fundamental rights of the applicant and the minor child”.
The heart of it
Judge Masuku said it is “grossly unfair” to deny citizenship to a child “because of the nature or circumstances of their birth, or the sexual preference of their parents.”
He said ultimately, the case, “stripped to the bare bones”, revolved around a child and his constitutional and human rights.
He said it was unclear on what basis the ministry argued it was in the best interest of the child to dispute his parent’s identity, when the family had no such dispute.
“In point of fact, it is in the minor child’s best interests to live with his parents and as desired in this case, take up citizenship of the applicant by descent.”
He underlined that the surrogacy arrangement was green-lit by a South African High Court, and the child was issued with authentic birth certificate papers, identifying Lühl as his legitimate parent.
The judge also warned that the position taken by Kapofi and his ministry could impact Namibians whose child is born outside of Namibia’s borders, whether by natural birth or other birth assistance methods.
The Delgado-Lühl family was represtend by Uno Katjipuka-Sibolile of Nixon Marcus Public Law Office.