Equality before the law and the recognition of same-sex foreign marriages in Namibia: Digashu and another v GRN and others; Seiler-Lilles and another v GRN and others [2023] NASC 14

Abstract

Article 10(1) of the Constitution of Namibian provides for the right to equality before the law. Article 10(2) prohibits discrimination on several grounds. The Constitution of Namibia, unlike that of South Africa (1996), does not prohibit discrimination on the ground of sexual orientation. However, unlike the Constitutions of some African countries such as Uganda, Seychelles, Kenya and Zimbabwe, the Constitution of Namibia does not prohibit same-sex marriages. Namibian law does not expressly prohibit same-sex marriages. However, in Immigration Selection Board v Frank (2001), the Namibian Supreme Court held that same-sex marriages were not allowed in Namibia. In Digashu and Another v GRN and Others; Seiler-Lilles and Another v GRN and Others, dated 16 May 2023, the Supreme Court, by majority, invoked Article 10(1) and common law to overrule its decision in Immigration Selection Board v Frank and to hold that Namibian law should recognise same-sex marriages entered into abroad. However, the court declined to express its opinion on whether discrimination on the ground of sexual-orientation is prohibited in Namibia. In this note, the author argues, inter alia, that the list of grounds under Article 10(2) is closed and that explains why the court did not rule that the appellants had been discriminated against based on their sexual orientation; it was unlikely for the government to succeed had it relied on the argument of public policy as the basis for its refusal to recognise foreign same-sex marriages; and that the court unconsciously developed common law on the issue of foreign marriages.