Judge takes stand against discrimination

THE Namibian Constitution’s guarantee of justice for all applies to all people in the country, regardless of their sexual orientation as well, a High Court judge has stated in a landmark decision for the rights of a same-sex couple and their first-born child.

The “insidious attitude of discrimination appears to rear its ugly head” in a case about the right to Namibian citizenship of the son of same-sex couple Phillip Lühl and Guillermo Delgado, judge Thomas Masuku remarked in the reasons for an order he granted in the High Court a week ago.

Masuku – in a judgement released yesterday – stated that the head of discrimination “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 among others, to be a secular state, founded on the rule of law and justice for all”.

He added: “[T]he ‘for all’ applies to all people in Namibia, regardless of colour, gender, sexual orientation, etc.”

Masuku made these remarks in a judgement containing the reasons for an order he delivered last Wednesday, when he declared that the son of Lühl and Delgado is a Namibian citizen by descent, and ordered the minister of home affairs, immigration, safety and security to issue a certificate confirming the boy’s citizenship.

Lühl, who is a born Namibian, and Delgado, who hails from Mexico, got married in South Africa in December 2014.

They became the parents of a son, who was born in South Africa through a surrogate pregnancy, in March 2019.

In March this year, Delgado and Lühl also became parents to twin daughters, likewise born in South Africa through a surrogate pregnancy.

On the three children’s South African birth certificates, Lühl and Delgado are both recorded as parents.

Former home affairs minister Frans Kapofi refused to have a certificate confirming the Namibian citizenship of the couple’s son issued, and instead wanted Lühl to have a DNA test done to prove his biological parentage of the boy.

That led to a legal battle in the High Court, where Masuku ruled in Lühl’s favour last week.

In his judgement, Masuku remarked that with no dispute existing between Lühl and Delgado about the paternity of their son, it was improper for the minister to create a dispute and friction about that.

There was also nothing that suggested it would be in the best interests of the boy to require a DNA test to be done to determine if Lühl is his biological father, the judge added.

He also remarked he had no doubt that if the boy had been born through a surrogacy arrangement to a heterosexual couple, the minister would not have questioned his parentage, and the matter would not have escalated to the level of court proceedings.

In terms of the Constitution, a child whose father or mother is a Namibian citizen is entitled to Namibian citizenship by descent, Masuku noted.

If the minister’s stance were to be taken to its logical conclusion, it would have dire consequences for the citizenship rights of children adopted outside Namibia by Namibian citizens, and also for children conceived through in vitro fertilisation and born to Namibian citizens – including heterosexual couples – outside the country, he said.

“Children must, regardless of the manner or circumstances of their conception or birth, family background, or other circumstances, be afforded the utmost protection of the law,” Masuku stated.

On the three children’s South African birth certificates, Lühl and Delgado are both recorded as parents.

Former home affairs minister Frans Kapofi refused to have a certificate confirming the Namibian citizenship of the couple’s son issued, and instead wanted Lühl to have a DNA test done to prove his biological parentage of the boy.

That led to a legal battle in the High Court, where Masuku ruled in Lühl’s favour last week.

In his judgement, Masuku remarked that with no dispute existing between Lühl and Delgado about the paternity of their son, it was improper for the minister to create a dispute and friction about that.

There was also nothing that suggested it would be in the best interests of the boy to require a DNA test to be done to determine if Lühl is his biological father, the judge added.

He also remarked he had no doubt that if the boy had been born through a surrogacy arrangement to a heterosexual couple, the minister would not have questioned his parentage, and the matter would not have escalated to the level of court proceedings.

In terms of the Constitution, a child whose father or mother is a Namibian citizen is entitled to Namibian citizenship by descent, Masuku noted.

If the minister’s stance were to be taken to its logical conclusion, it would have dire consequences for the citizenship rights of children adopted outside Namibia by Namibian citizens, and also for children conceived through in vitro fertilisation and born to Namibian citizens – including heterosexual couples – outside the country, he said.

“Children must, regardless of the manner or circumstances of their conception or birth, family background, or other circumstances, be afforded the utmost protection of the law,” Masuku stated.