Guillermo Delgado (left) and Phillip Lühl (right) with their lawyer Uno Katjipuka-Sibolile (centre) Photo: Namibia Equal Rights Movement
The government of Namibia has taken a step backwards by deciding to appeal the recent landmark High Court ruling recognising a gay couple’s son as a Namibian citizen.
On 13 October, Judge Thomas Masuku ruled that two-and-a-half-year-old Yona Delgado-Lühl – born via surrogacy in South Africa to Namibian Phillip Lühl and his Mexican husband, Guillermo Delgado – is entitled to Namibian citizenship by descent.
Significantly, the judge found that rejecting Yona’s right to citizenship on the basis that his parents are a same-sex couple is unlawful discrimination and that it violates the Namibian Constitution, which guarantees equality for all citizens.
Masuku wrote that the rule of law and justice “applies to all people in Namibia, regardless of colour, gender, sexual orientation, etc.”
He also rejected the minister’s demand that Yona undergoes a DNA paternity test. “Had the child been born pursuant to a surrogacy agreement to a heterosexual couple, the respondent (the ministry) would not have required the applicant to undergo DNA tests to prove the paternity of the child,” the judge wrote.
The decision was hailed as a major legal victory for LGBTIQ+ rights in a country in which same-sex relationships are technically illegal.
On Friday, however, the Ministry of Home Affairs, Immigration, Safety and Security reaffirmed its regressive stance by announcing that it would not accept the court’s decision.
The ministry said in a statement that after studying the judge’s explanation for his ruling, “we have decided to appeal the ruling of the High court and an appeal was noted with the Supreme Court today setting out the reasons for our belief that the High Court erred in law and in fact.”
“While appreciating that this is a matter of great public interest, we will unfortunately not be making any further comments on this sub judice matter but allow the law to take its course,” added the ministry.
In its court papers, the ministry argued that the judge had adopted a “plainly wrong reading” of the Constitution because “it does not countenance homosexual or gay relationships.”
The Namibia Equal Rights Movement described the decision as “state-sanctioned homophobia” on Facebook. “President Dr Hage G. Geingob who does your Namibian house open its doors to? Namibian children are being locked out, just because of who their fathers love,” the group said.
The organisation also called on citizens who support equality to join it for a protest outside the Ministry of Homophobic” Affairs on Monday 15 November.
Earlier in the year, Lühl and Delgado were also forced to take action against the ministry after it initially refused to issue travel documents for their youngest children, Paula and Maya, who were born in March, via surrogacy in South Africa.
Delgado, who married Lühl in South Africa in 2014 and has lived in Namibia for 10 years, is, in addition, fighting a separate case for the right to stay in the country with his family.
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.