Guillermo Delgado (left) and Phillip Lühl (right) with their lawyer, Uno Katjipuka-Sibolile (centre). Photo: Namibia Equal Rights Movement
In a major legal victory for same-sex families in Namibia, the Windhoek High Court has recognised a gay couple’s son as a Namibian citizen.
On Wednesday, Judge Thomas Masuku ruled that two-and-a-half-year-old Yona Delgado-Lühl is entitled to Namibian citizenship by descent.
The boy was born via surrogacy in South Africa to Namibian Phillip Lühl and his Mexican husband, Guillermo Delgado.
The Namibian government had refused to grant Yona citizenship, despite Lühl being named as one of the parents on his birth certificate. Officials had demanded a DNA test to confirm that he is genetically related to Lühl.
The court, however, dismissed the DNA requirement and ordered the Ministry of Home Affairs, Immigration, Safety and Security to issue Yona with a certificate of citizenship within 30 days. The Minister of Home Affairs was also ordered to pay Lühl’s legal costs in the case.
“This is a big win for same-sex couples and especially a big win for Namibian children born outside Namibia by way of surrogacy,” the couple’s lawyer, Uno Katjipuka-Sibolile, told The Namibian outside the court.
Chris De Villiers, Chairperson of Out & Proud Namibia, described the court ruling as a victory for democracy.
“It is with great pride in our judicial system that I have received the incredible news today,” he told MambaOnline. “The fight for equal rights is not over, but the outcome of this case is a significant step in the right direction.”
De Villiers noted that “critical gaps exist in the implementation of the Namibian Constitution” and said it was sad that private citizens had to turn to the courts to secure their rights. He praised the couple’s legal team and the organisation Namibia Equal Rights Movement for their work in the case.
Earlier in the year, Lühl and Delgado were forced to take action against the ministry after it refused to issue travel documents for their youngest children, Paula and Maya, who were born in March, also via surrogacy in South Africa.
In May, the Ministry of Home Affairs made a U-turn and instructed the High Commission in Pretoria to issue emergency travel documents to the girls, allowing the twins to go home to Namibia.
Katjipuka-Sibolile confirmed that Wednesday’s ruling means that Paula and Maya will also be entitled to citizenship, just like their older brother. “The ministry will have to issue citizenship by decent certificates to the twins as well,” she said.
Delgado, who married Lühl in South Africa in 2014 and has lived in Namibia for 10 years, is fighting a separate case for the right to stay in the country with his family. The matter was heard in the Namibian Supreme Court on Monday.
The Namibia Equal Rights Movement earlier stated that “it is blatant discrimination that the Ministry of Home Affairs, Immigration, Safety and Security is tearing families apart solely on the basis of their sexuality. Sate-sanctioned homophobia has no place in a born-free Namibia.”
LGBTQ+ people in Namibia face discrimination, harassment and violence. Consensual “sodomy” between men is illegal and could be used to prosecute LGBTQ individuals, although this is not believed to have happened since the country’s independence in 1990.