Having failed in the High Court in 2021 and 2022, three of these matters already appeared, on appeal, before a five-member bench of the Supreme Court on 3 and 6 March 2023. The Supreme Court reserved judgement on all three matters.

These three matters concern the recognition of same-sex marriages concluded between Namibian citizens and foreign nationals outside the Republic of Namibia and the citizenship of their minor children. The applications are based on alleged discriminatory practices levelled against the appellants and their minor children by officials of the Ministry of Home Affairs because of their sexual orientation.  

The central legal issue in all these matters emanates from a judgement handed down by the Supreme Court in 2001 where it ruled that same-sex relationships are illegal in Namibia and that the right to family entrenched in article 14 of the Constitution did not include same-sex relationships (Chairperson of the Immigration Selection Board v Frank [2001] NR 107 (SC)).

In terms of article 81 of the Constitution, the High Court is bound by decisions of the Supreme Court even if the decisions are wrong, unless the findings were comments or observations, which they were not. The applicants could not obtain the declaratory and constitutional relief sought from the High Court because, even though the High Court in these matters opined differently and even provided some assistance in proper and due regard to the Supreme Court, it was still bound by the decision in Frank. The Supreme Court can, however, reverse its own decision and it is now presented with three chances to do so.

In the fourth case, a lone applicant has launched an application in the High Court of Namibia against five government respondents, including the Ministry of Justice and the Attorney General, for relief against sodomy laws. The application, which was lodged in June last year, has moved closer to finalisation with it set down for a case management hearing on 14 March.

This matter takes a swipe at the criminalisation and penalisation of consensual sexual acts between men (sodomy) in various statues on the basis that such criminalisation violates the constitutional rights to equality, dignity, privacy, freedom of association, freedom of expression of gay men and men who have consensual sex with men. The applicant wants the common law offences of sodomy and unnatural sexual offences and their inclusion in statues as a crime to be declared unconstitutional and invalid.

The application is opposed by the respondents who, although accepting its constitutional importance, submitted that homosexuality and sodomy is immoral and unacceptable to many Namibians and that the constitutional challenges lacks merit.

These matters have brought into sharp focus the constitution and common law in respect of LGBTQ rights and the Supreme Court’s decisions will have far reaching consequences.

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