Same sex couple appeal to Supreme Court

15 March 2021 | Social Issues

Windhoek • [email protected]

A South African married to a Namibian of the same gender plans to appeal a High Court decision at the Supreme Court that denied him the right to call Namibia home.
At the beginning of March, a High Court judge dismissed an appeal brought by Guillermo Delgado Castañeda to review and set aside a Home Affairs decision denying him domicile in Namibia.
Castañeda last year sued authorities after they kicked him out of Namibia on short notice when an immigration officer discovered Castañeda was in a same-sex marriage to Namibian Phillip Lühl.
Castañeda and Lühl have lived in Namibia since 2011 and were married in South Africa in 2014. They have a young son together born to them by surrogacy.

Unequal
Castañeda’s legal battle to be declared domiciled in Namibia due to his decade-long work in the country and the establishment of a family unit is another example of the country’s homophobic streak, legal experts say.
“In my view, Namibia’s shocking legal treatment of the gay and lesbian community undermines the nation’s commitment to non-discrimination,” Dianne Hubbard of the Legal Assistance Centre (LAC) said in response to the judgment.
She added that the judgment was based on the very narrow legal issue of domicile, and ignored the broader issues at play, including the constitutional protection of families and children.
Castañeda’s lawyer Uno Katjipuka of Nixon Marcus public law says the judgment was “very disappointing”.
In Namibia, foreigners married to Namibian’s of opposite genders are automatically entitled to domicile. “Firstly because my client did everything right and complied with all of Home Affair’s procedures, including applying for domicile.”
She said Castañeda and his husband played open cards with Home Affairs, despite the ministry’s argument that they hid the fact that they were of the same gender.
“Unfortunately, the court opted to adopt a clinical approach to the Immigration Control Act, thereby ignoring the practice adopted by Home Affairs in respect of this domicile certificate,” Katjipuka noted.
In court, Castañeda admitted that while the Namibian law “does not recognise same-sex marriages (yet), I submit that when it comes to the determination of whether I have established domicile in Namibia, the fact that Phillip and I have been in a stable relationship for more than ten years is a relevant factor.”
The judge swept this argument from the table, saying no arguments were made before him to “declare the country’s approach to same-sex marriages unconstitutional”.
Katjipuka added that the court’s order that Castañeda foot the bill of both his and Home Affair’s legal costs “makes no sense whatsoever and is patently unfair towards my client”.
Meanwhile, Castañeda is living in Namibia on a work permit and has applied for an extension of that visa.

International laws
Human rights lawyer Norman Tjombe said another strategy for such a case is to advance the argument of “comity of nations”.
This would mean Namibia is obliged to recognise the laws of another sovereign, including the family laws permitting same-sex marriages, so that a “spouse” in the Immigration Control Act is to include “a spouse” in terms of the laws of that sovereign country.
In South Africa, where the couple were married, same-sex marriages have long been legally recognised.
Tjombe noted that the fight for recognition of same-sex marriages in Namibia remains an uphill battle and that growing positive international legal trends would allow stronger arguments in cases such as this.
He added that another option for couple’s in the same boat is to launch “a full attack on the common law definition of a marriage (“a union between a man and a woman to the exclusion of others…”) and thus recognising same-sex marriages.”
Both Hubbard and Tjombe say they are hopeful that of the several pending cases before the court that address the discrimination against same-sex couples, may result in more different outcomes.

Similar News

 

US support for HIV facilities

1 week ago - 05 May 2021 | Social Issues

To continue increasing access to HIV services for all people in Namibia, the US Embassy in Namibia has supported the opening of two HIV testing...

Building assistance for Okuryangava orphanage

1 week ago - 30 April 2021 | Social Issues

Building material valued at N$50 000 was handed over to the Okuryangava Children’s Home by RND Holdings on Thursday (29 April).The home houses around twenty...

Cash support for SPCA

2 weeks ago - 27 April 2021 | Social Issues

The Olympia Eye and Laser Clinic sold face masks to clients, with all proceeds dedicated to the SPCA. In this way, N$16 650 was raised...

Teenage pregnancies, abuse discussed

2 weeks ago - 23 April 2021 | Social Issues

An open dialogue was held in Windhoek on Thursday to discuss the causes and frameworks in place to strengthen efforts to reduce learner pregnancies and...

Struggle kids ‘stigmatised’

2 weeks ago - 22 April 2021 | Social Issues

Children of the liberation struggle, also known as ‘struggle kids’, feel it is hard for them to secure employment outside government, because there is a...

Seeing the future

3 weeks ago - 20 April 2021 | Social Issues

Tanja Wilckens of Pro-Specs and Marlize Hall of African Eyes Optometrist donated their time to performing eye-screenings on 53 learners of N/a’an ku sê Primary...

Head of UNAIDS meets DREAMS girls

3 weeks ago - 15 April 2021 | Social Issues

The executive director of the Joint United Nations Program on HIV and AIDS (UNAIDS), Winnie Byanyima, recently visited beneficiaries of the US-funded DREAMS project in...

Small increase for GIPF pensioners

4 weeks ago - 14 April 2021 | Social Issues

The Government Institutions Pension Fund (GIPF) announced a 3% pension benefit increase, effective 1 April 2021 for all GIPF pensioners.In a media release, the GIPF...

In love with Dairy Love

1 month - 01 April 2021 | Social Issues

Namibia Media Holdings’ staff recently collected funds with support of Namibia Dairy’s latest product, Dairy Love, to donate to the Cancer Association of Namibia (CAN)....

Taking hands with MealForTwo

1 month - 24 March 2021 | Social Issues

Food security in Namibia remains a big concern and the need for assistance is increasing as more families find themselves in a desperate situation brought...

Latest News

Chill with Windhoek Express

17 hours ago | Art and Entertainment

Recurring events• 07:00 Bio-Markt / Green Market at the Stephanus Church (Dr Kenneth Kaunda Street) in Windhoek until 12:00.• 08:30 The weekly Inspire Market features...

Government in catch 22 on...

17 hours ago | Local News

While acknowledging that the majority of Namibians rely on the national broadcaster for information, Prime Minister Saara Kuugongelwa-Amadhila conceded that government cannot meet its employees’...

Murorua takes over BAN reigns

18 hours ago | Banking

The Bankers Association of Namibia (BAN) announced that Nedbank chief executive Martha Murorua has taken over the reigns as chair from Ester Kali, CEO of...

Bowling on a roll

19 hours ago | Sports

Namibia Bowling Association (NBA) president Michael Wells has expressed his pleasure at the improved performance of players at the recently held Namibia National Bowling Championships.The...

Virtual international training for local...

19 hours ago | Sports

Eight Namibian soccer coaches will take part in an international instructor’s course organised by the German Football Federation and Botswana Football Association to help improve...

Old Mutual under ‘10 strongest...

20 hours ago | Business

The 2021 Brand Finance report has ranked Old Mutual in the top 10 strongest brands, as well as in the top 100 most valuable insurance...

Fire safety measures every homeowner...

1 day - 11 May 2021 | Disasters

The recent blaze that unfolded along the Cape’s iconic Table Mountain was a reminder of the very real threat fire poses to homeowners. It is...

Conservancy feeds their own children

1 day - 11 May 2021 | Society

For a second consecutive year, members of the N≠a Jaqna Conservancy are using part of their income to provide food to all registered schools and...

More support of Nam’s sustainable...

1 day - 11 May 2021 | Infrastructure

Namibia’s finance minister Iipumbu Shiimi and German ambassador Herbert Beck signed an agreement on financial cooperation for loans between the two countries earlier this week.The...

Load More