Misanet.com / The Namibian, 6 March - Gay and lesbian relationships cannot claim to have the same legal status in Namibia as heterosexual unions, the Supreme Court ruled yesterday in a judgement that looks set to stand as a milestone on the issue of same-sex relationships in Namibia. The bench of the Supreme Court was split on the issue.
Acting Judge of Appeal Pio Teek concurred with a judgement penned by Acting Appeal Judge Bryan O'Linn, with Chief Justice Johan Strydom dissenting, in setting aside a 1999 High Court judgement of then Acting Judge Harold Levy.
The two Acting Appeal Judges agreed that the Immigration Selection Board had to be ordered to again consider an application by German citizen Liz Frank to be issued a permanent residence permit.
However, they also dealt Frank a setback in her quest to have her long-term lesbian relationship with a Namibian citizen recognised as a factor that should count in her favour when her permanent residence application is considered. Such a relationship is not recognised under Namibian law, they held.
In what must be a bitter blow to Frank, public anti-homosexual statements by the President and Home Affairs Minister which she had raised to back up her belief that her sexual orientation appeared to have been held against her by the Board, were cited by the court as indicating the dominant values of the Namibian nation which had to be taken into account on this controversial issue.
Frank has lived in Namibia since 1990, and has since then been involved in a lesbian relationship with her Namibian-born partner, Elizabeth Khaxas. Before Namiba's independence, Frank had for some eight years been involved with the Swapo liberation movement (now government party) in exile and with the Anti-Apartheid Movement in Europe.
Since 1995 she has tried unsuccessfully to obtain a permanent residence permit to enable her to stay in Namibia with Khaxas and the latter's son from a previous relationship whom the two are raising together.
The two judges ordered the Board to first allow Frank to respond to any information before the Board which might damage her application before it takes its decision.
Following the judgement, Frank is in a sense back where she started in 1995 in her quest to be allowed to stay in Namibia permanently. In terms of the court's order she now has 30 days within which to make written representations to the Board, after which the Board has to make a decision on her application within the next 30 days after that.
In a minority judgement, Chief Justice Johan Strydom sidestepped the issue of the relationship between Frank and Khaxas, but ruled that the Board had to issue Frank with a permanent residence permit. His finding was based on a refusal to condone the five months late filing of the record of the initial High Court case with the Supreme Court that was due to the admitted negligence of Government lawyer Matti Asino.
In Acting Judge Levy's judgement, he ordered the Immigration Selection Board to issue a permanent residence permit to Frank.
At the same time, his judgement marked the first time a Namibian court has given a flickering of an indication that a same-sex relationship could have the same legal status as one involving people of opposite sexes.
Acting Judge Levy ruled in June 1999 that the long-term relationship between Frank and Khaxas was recognised by law as a "universal partnership" in terms of which two people - like any unmarried man and women living together as husband and wife - join their assets, which if their relationship is again dissolved can then be divided between them by a court.
However, stated Acting Judge of Appeal O'Linn, an issue such as the lesbian relationship between Frank and Khaxas was controversial in Namibia, as in most of Africa, and was "a grave and complicated" issue which would take time to resolve.
He noted that the Namibian Constitution, which unlike for instance the supreme law of South Africa does not expressly prohibit discrimination on the basis of people's sexual orientation, had to be interpreted while taking the norms, values and aspirations of the Namibian nation into account.
Having ruled that the creators of Namibia's Constitution had never contemplated or intended to place a homosexual relationship on an equal basis with a heterosexual one, Acting Judge of Appeal O'Linn found -that people in a same-sex relationship could also not be considered to be a "family" as protected by the Constitution.
He further found that the trend in Namibia and the opinions, norms and values of the Namibian people appeared to be moving away from guaranteeing equality regardless of sexual orientation.
Public anti-gay statements by President Nujoma and Home Affairs Minister Jerry Ekandjo were evidence of these values, he remarked. And, the court was entitled to take note that when Nujoma's and Ekandjo's comments were brought up in Parliament, nobody on the Government benches, which represent 77 per cent of the voting Namibian electorate, made any comment to the contrary, he stated.
Frank and Khaxas were represented by Lynita Conradie of the Legal Assistance Centre. Herman Oosthuizen, instructed by Asino from the Office of the Government Attorney, argued the case for the Board before the appeals court.
By Werner Menges, The Namibian