Namibian Court Recognizes Foreign Same-Sex Marriages
Namibia’s Supreme Court has issued a long-awaited ruling recognizing same-sex marriages performed abroad.
The ruling is a victory for Namibians and their foreign spouses, who risked deportation and the denial of benefits when their marriages were not recognized by the state. The litigation was brought by two binational couples, one married in Germany and another married in South Africa, who had settled in Namibia.
The foreign spouses were denied residency permits under the Immigration Control Act, which did not recognize them as a “spouse.” This restrictive understanding would have left their unions unrecognized for immigration purposes and would have forced the couples to leave the country or live apart. In 2022, the country’s High Court, one level below the Supreme Court, considered the claims and ruled that it was unable to grant immigration benefits under existing precedent but expressed concern that the couples' rights had been violated and emphatically decried discrimination against same-sex couples.
The Supreme Court agreed that their rights had been violated, finding that the discriminatory provisions of the Immigration Control Act violated the constitutional guarantees of dignity and equality. Its decision adds to a growing body of jurisprudence in the region, recognizing the human rights of all persons regardless of sexual orientation or gender identity. Earlier this month, Nepal’s Supreme Court similarly ordered its government to recognize a foreign same-sex spouse for immigration purposes.
The European Court of Justice has also found that refusing to recognize foreign same-sex marriages jeopardizes the right to freedom of movement and rights of same-sex couples. The ruling does not guarantee full equality in Namibia, where same-sex activity is criminalized and same-sex couples cannot enter civil partnerships or marriages under domestic law. Still, the decision recognizes that couples who marry abroad have entered a legal union, and that ignoring or invalidating that union jeopardizes their human rights. That recognition is critically important for binational couples and offers a practical option for many to remain and build a life with their families in Namibia.
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References:
- https://ejustice.moj.na/Supreme%20Court/Judgments/Judgments/Digashu%20v%20GRN,%20%20Seiler-Lilles%20v%20GRN%20(SA%207-2022%20and%20SA%206-2022)%20%5b2023%5d%20NASC%20(16%20May%202023).docx
- https://www.lac.org.na/laws/annoSTAT/Immigration%20Control%20Act%207%20of%201993.pdf
- https://www.hrw.org/news/2022/01/25/namibian-court-rules-it-cannot-require-recognition-same-sex-marriages
- https://www.bbc.com/news/world-africa-64491276
- https://www.bbc.com/news/world-africa-48594162
- https://www.hrw.org/news/2023/05/02/nepal-court-orders-recognition-same-sex-spouse
- https://www.hrw.org/news/2018/06/07/court-ruling-upholds-right-same-sex-couple-live-romania
- https://media.namiblii.org/files/na/other/law-reform-report/NALRDC%2043/43%20LRDC%20-%20Report%20on%20the%20abolishment%20of%20the%20Common%20Law%20offences%20of%20Sodomy%20and%20unnatural%20Sexual%20offences_0.pdf
