In Namibia, same-sex parents pin hopes for change on courts

Daniel Digashu didn’t set out to become a symbol. When he brought his case to a Namibian court in 2017, he had a simple request. He wanted them to recognize his South African marriage to his Namibian husband Johann Potgieter, so that the couple and their son could stay together in Mr. Potgieter’s home country.

“One of us is from here,” Mr. Digashu reasoned, “so we should have the choice to live here, the same as any couple.”

Phillip Lühl and Guillermo Delgado weren’t trying to become activists either, when they asked a Namibian court earlier this year to grant citizenship to their infant twin daughters, who were born by a surrogate in neighboring South Africa. They, too, had been married in South Africa, and they too wanted to be together, as a family, in Namibia.

But as both families’ cases wind their way through the courts, they have drawn renewed focus to laws that discriminate against LGBTQ people in Namibia. In recent years, similar laws have begun to topple across the region, and activists hope Namibia’s may be next.

“There’s only so much people can take before they fight back and right now they’re fighting back through the courts,” says Uno Katjipuka, an attorney for the Lühl-Delgados, who also recently worked on a police brutality case whose victim was a transgender woman.

Those court challenges are, in many ways, a battleground of last resort, leapfrogging legislatures and public opinion to secure legal rights. But they can be powerful. In 2018, India’s Supreme Court overturned a British colonial law banning sex “against the order of nature.” Botswana followed the next year. Three cases challenging the criminalization of gay sex are currently being tried in Mauritius, an island nation in southeastern Africa.

The cases in Namibia are not challenging the criminalization of homosexuality directly, but activists hope that by chipping away at legal prohibitions, they could set the precedent for more wide-reaching challenges in the future.

“Courts are often the ultimate guarantor of human rights when a particular right or type of rights is not popular,” says Neela Ghoshal, an associate director in the LGBT Rights program at Human Rights Watch. “Governments know and legislatures know that they are not supposed to govern solely based on what’s popular. But they often find it difficult to do the right thing because they don’t want to be voted out.”

Namibia is wrestling with a particularly complicated history when it comes to its laws. Until 1990, the country of 2.5 million was ruled by apartheid South Africa. When it became independent, it wrote a new constitution, but it also inherited many of South Africa’s restrictive laws, including the criminalization of sodomy.

A government body was soon set up to reform those old laws, but three decades later, many, including several restricting the rights of LGBTQ Namibians, remain on the books.

“These laws are not our laws – they were not written by a democratically elected Namibian government,” says Omar van Reenen, co-founder of the Namibia Equal Rights Movement, a coalition of organizations advocating for LGBTQ rights.

“Bigger ... than just us”

When Mr. Digashu, who is South African, arrived in Namibia in 2016, with his husband, Mr. Potgieter, the couple wasn’t thinking about the historical origins of Namibia’s laws.

They just wanted a way for Mr. Digashu and their son to stay legally in Namibia. Initially, they thought they were eligible for permanent residency, Mr. Digashu says, since they were family members of a Namibian citizen.

“[Government] said no, that they didn’t want to open Pandora’s box” by recognizing a foreign same-sex marriage, he recalls. So the couple followed the government’s recommendation that Mr. Digashu apply for a work permit. Only when that too was rejected, he says, did he begin to see the barriers against them as discriminatory, and decided to challenge the non-recognition of their marriage in court.

As activists rallied around their case, “we realized then how much bigger this is than just us,” he says. “It’s about making a contribution, even a small one, to the rights of LGBT people here in Namibia.”

For Mr. Lühl and Mr. Delgado, too, being in the public spotlight was a decision they made reluctantly. Mr. Lühl is Namibian, Mr. Delgado is Mexican, and for several years, they have been fighting in court to stay together in Namibia as a couple, where they both work in architecture. Like Mr. Digashu, Mr. Delgado has struggled to obtain long-term residency in the country. (Heterosexual married couples, by contrast, can apply for residency for the non-Namibian spouse).

Then in 2019, the couple had a son by a surrogate in South Africa. Although both fathers’ names were on the birth certificate, the Namibian government demanded proof of a genetic link between Mr. Lühl and the child to grant him Namibian citizenship. The couple challenged the ruling in court, saying that heterosexual couples were not required to show the same proof. Earlier this year, they welcomed twin daughters, also by a South African surrogate. When the Namibian government denied the girls citizenship as well, the couple decided they had no choice but to go public.

“We decided we needed to humanize these stories and show that families can look like all kinds of things and still be good places for children to grow up,” Mr. Lühl says.

The girls were eventually granted emergency travel documents to leave South Africa, where they had been staying with Mr. Lühl since their birth, and travel back to Namibia, where Mr. Delgado and their 2-year-old son had been waiting. But their children’s citizenship will be decided by a court in August.

“The reality is, this is not just an individual story – it’s about the lack of full equality in Namibia,” Mr. Lühl says. “Now that has really been highlighted and put center stage.”

Small steps

In May, meanwhile, after hearing arguments in Mr. Digashu and Mr. Potgieter’s case and another challenge from a bi-national same-sex couple, the High Court in Namibia’s capital, Windhoek, announced that it would pass down a judgment in their case by early 2022.

Their attorney, Carli Schickerling, says that cases like this one could help set precedent for larger challenges – like decriminalizing homosexuality or allowing same-sex marriage.

“Right now we are fighting the smaller battles to eventually win that war,” she says.   

Part of the reason court challenges are significant is simply to show LGBTQ Namibians that the law can be on their side, says Ndiilokelwa Nthengwe, a Namibian activist: “The average LGBTQ+ person would not know how to access the courts, and they don’t know what goes on in court procedures.”

However, Ms. Katjipuka, the attorney, already sees signs in the courtroom that things are changing. When her client, a transgender woman named Mercedez Von Cloete, appeared in court earlier this year to lay a charge of police brutality, the defendant’s lawyers referred to Ms. Von Cloete as “he.”

But the judge, she says, corrected them.

Again and again, until finally they got it right.