Procedural Posture
The government appealed to the Supreme Court of Namibia against orders made by the High Court. The High Court had ordered the Immigration Selection Board’s refusal of a permanent residence permit to the respondent to be set aside.
Facts
In 1995, the respondent applied to the Namibian Immigration Selection Board for a permanent residence permit. She was a German citizen but had worked and resided in Namibia since 1990. Throughout that time she had been in a relationship with another woman, the second respondent, who was a Namibian citizen. The respondent acted as a parent to the second respondent’s son. Her initial application and a subsequent reapplication in 1997 were both denied.
Along with documentation of her work qualifications, skills and experience, the respondent had submitted evidence of the strength and extent of her same-sex relationship, including a statement that, were they able to do so under Namibian law, the respondents would have married. Under Article 4(3) of the Constitution and Section 26(3)(g) of the Aliens Control Act, foreign “spouses” of Namibian nationals were afforded preferential treatment in immigration applications. However, the Board had held that the respondent’s long-term relationship with the second respondent was a “neutral factor” because the relationship was “not one recognised in a Court of Law and was therefore not able to assist the respondents”.
The respondent successfully applied to the High Court of Namibia for review of the decision. The High Court ordered that the Board’s decision be set aside and directed that the respondent be issued with a permanent residency permit. The High Court held that the respondent’s relationship should have been taken into account in a decision based in part on the constitutional right to equality. The High Court reasoned that the respondent’s lesbian life partnership could receive legal recognition, because it was analogous to the legally recognised common law relationship of ‘universal partnership’, in which an unmarried heterosexual couple lived together as if they were husband and wife partners. The Chairperson of the Board appealed to the Supreme Court.
Issue
Whether the respondent’s lesbian life partnership could be considered in her application for permanent residency in Namibia.
Domestic Law
Constitution of Namibia, Articles 10 (right to equality and freedom from discrimination), 13(1) (right to privacy), and 14 (protection of family).
Immigration Control Act 1993, Section 26(3)(g).
Comparative Law
Banana v. State, Supreme Court of Zimbabwe, 2000 (upholding the constitutionality of State sodomy law).
International Law
African Charter on Human and Peoples’ Rights, Articles 17(3) (promotion and protection of morals and traditional values recognised by the community shall be the duty of the State), and 18(1) (family as a natural unit and the basis of society).
International Covenant on Civil and Political Rights, Articles 17 (right to privacy), 23 (protection of family), and 24 (protection of children).
Universal Declaration of Human Rights, Article 16(3) (family as the natural and fundamental group unit of society).
Reasoning of the Court
Much of the judgment dealt with procedural matters and consideration of the respondent’s employment history. However, the respondent also raised a number of constitutional issues in relation to the treatment of her relationship with another woman.
The respondent contended, among other things, that her rights under the Constitution to equality, privacy, and the protection of family, as well as her right to freedom from discrimination, had been contravened.
As a preliminary matter, the Court found that under Namibian constitutional and immigration law the term “spouse” could only apply to a partner in a heterosexual marriage. Therefore it was impossible to infer that the respondent would be entitled to any preferential treatment as the foreign national “spouse” of a Namibian national under Article 4(3) of the Constitution or Section 26(3)(g) of the Aliens Control Act. The respondent did not contest this point, but nonetheless argued that her relationship should be afforded equal status as part of the right to the protection of family life under Article 14 of the Constitution. The Court rejected this argument.
According to the Court, Article 14’s protection only extended to the “natural and fundamental group unit of society as known at the time as an institution of Namibian society”. It did not create any new types of families. The Court held that in the Namibian context, homosexual relationships fell outside of the scope of Article 14. It refused to accept the respondent’s argument that granting permanent residency would be in the best interests of the second respondent’s child, stating that it was debatable and controversial whether being raised in a “homosexual ‘family’” could protect a child’s interests. The Court interpreted the “family institution” under the Constitution as a formal heterosexual relationship primarily focused on procreation. The Court found that this position was consistent with the African Charter of Human Rights, the UDHR, and the ICCPR.
The Court held that the respondent and her partner’s right to privacy under the Constitution was not relevant because the respondent was an “alien with no existing right to residence”. In addition, the Court held that the privacy provision under Article 17 of the ICCPR had “no rational connection” to the refusal of a residence permit.
The Court then turned to the argument that the right to equality and non-discrimination under Article 10 of the Constitution had been infringed because the Board had refused to recognise the respondent’s relationship with a Namibian citizen. The Court held that the situation in Namibia was fundamentally different from the situation under South African constitutional and immigration law, where, under the right to equality, the preferential treatment given to foreign national “spouses” was extended to “partners in a permanent same-sex life partnership” in applications for permanent residency. The Court held that, because the Constitution of South Africa explicitly prohibited discrimination on grounds of sexual orientation, the reasoning behind the extension of the South African law could not be applied in Namibia. The Court suggested that the implications of recognising sexual orientation as a prohibited ground of discrimination were such that it could extend to “any sexual attraction of anyone towards anyone or anything” (emphasis in original). According to the Court this could potentially extend to the decriminalisation of bestiality.
The Court found that unlike in South Africa, where a “legislative trend” evinced a greater commitment to equality with respect to sexual orientation, “Namibian trends, contemporary opinions, norms and values tend in the opposite direction”. The Court held that the position in Namibia was more closely aligned to that of Zimbabwe where, in cases such as Banana v. State, courts had shown little inclination to extend constitutional protections in relation to sexual orientation and “sexual freedoms”.
Furthermore, the Court held that some differentiation was permissible under Article 10 of the Constitution if it was based on a rational connection to a legitimate purpose and that “equality before the law for each person, does not mean equality before the law for each person’s sexual relationships”.
The Court decided that it was not in a position to make orders that would usurp parliament’s role as legislator and held that there was no requirement to do so under the Constitution. Unlike the South African Constitutional Court, it could not read in an extension of immigration laws to provide to permanent same-sex life partners of its citizens preferential treatment equalling that afforded to “spouses”. As a result, the Court held that the Board had no obligation to consider the respondent’s same-sex relationship as a factor that strengthened her application for permanent residence.
The Court also stated that “nothing in this judgment justifies discrimination against homosexuals as individuals, or deprives them of the protection of other provisions of the Namibian Constitution.”
The Court referred the case back to the Board for reconsideration. In doing so, it affirmed that, in the exercise of its “wide discretion”, the Board was permitted to consider the “special relationship” between the respondent and the second respondent as a factor in favour of granting permanent residence.
Chairperson of the Immigration Selection Board v. Frank and Another, Supreme Court of Namibia (full text of judgment, PDF)
