Recognition of same-sex unions in Namibia

The Marriage Act (Act 25 of 1961), enacted by the Parliament of South Africa when Namibia was still South West Africa, does not explicitly prohibit the recognition of same-sex marriages; neither, does it explicitly define marriage.[1] However, the law has "heteronormative underpinnings" and has been interpreted not to recognise same-sex unions.[2]

Likewise, the Constitution of Namibia does not explicitly permit nor prohibit same-sex marriages. Article 14(2) states:

Marriage shall be entered into only with the free and full consent of the intending spouses.[lower-alpha 1]

Article 14(1) states that men and women of full age may enter into marriage irrespective of their race, colour, religion, ethnicity, creed, social or economic status, or nationality. Furthermore, men and women are entitled to the same rights and obligations, whether during the marriage or at its dissociation. Article 14(3) places the family as the "natural and fundamental unit of society", entitled to special protection by the State.[9]

Same-sex sexual activity legal

  Same-sex marriage

  No recognition of same-sex couples

Same-sex sexual activity illegal

  Not enforced or unclear

  Penalty

  Life in prison

  Death penalty

In 2001, a Namibian woman and her German partner Elisabeth Frank sued to have their relationship recognised so that Frank could reside in Namibia. The Immigration Board granted the residence permit, and the State appealed to the Supreme Court. In Chairperson of the Immigration Selection Board v Frank and Another, the Supreme Court granted the appeal, noting:

Homosexual relationship[s], whether between men and men and women and women, clearly fall outside the scope and intent of Article 14 [of the Constitution of Namibia].[10]

While the court ruled that Frank should be given a permanent residence permit, which she received a year later, it did not rule in favour of same-sex relationships.[11][12]

In December 2017, Namibian Johann Potgieter and his South African husband Daniel Digashu filed a lawsuit against the Namibian Government to have their 2015 South African marriage recognised in Namibia. Digashu is not recognised by the state, causing several legal and bureaucratic problems as he cannot receive a permanent residence permit, as is given to married opposite-sex partners. The couple filed their case with the High Court.[13][12] In January 2018, Digashu won a court petition to allow him to enter Namibia as the High Court continues to review their case.[11]

In 2018, a second case was brought to the High Court by Namibian-born lawyer Anita Grobler and her South African spouse, Susan Jacobs, who have been together in a relationship for over 25 years, in an attempt to have their 2009 South African marriage recognized in Namibia and to obtain residence rights for Jacobs.[11] The couple named the Ministry of Home Affairs and Immigration as defendants in their suit.[14] The Immigration Selection Board decided on 25 July to approve Jacobs' application for a Namibian permanent residence permit, and she has made the required payment of N$18,000 for the permit, but as of October 2019 it had still not been issued to her.[15] The couple has agreed to consider a possible settlement agreement and the withdrawal of their lawsuit once the residency permit is issued.[16]

A third case was filed in 2018 by Anette Seiler-Lilles and her German wife Anita Seiler-Lilles, who have been together since 1998. The couple seeks to have their 2017 German marriage recognized in Namibia.[16]

In June 2019, Judge President Petrus Damaseb directed that a full bench of three judges should be designated to hear all pending cases.[11] In September 2019, Potgieter and Digashu agreed to consolidate their court case with that of Seiler-Lilles.[16] They argue that the lack of gendered terms in Namibian law requires the Government to recognise their marriages.[2]