The Namibian high court has ruled that it cannot order the government to issue emergency travel documents for newborn twins to come into the country. The babies were born to a South African surrogate mother. Their fathers, married in South Africa, are a Namibian and a Mexican. The babies have birth certificates, issued by the SA authorities, indicating that the Namibian is the father of the children. However, the Namibian minister of home affairs and immigration is insisting on a DNA test before any official documents will be issued for the twins. This would be to establish whether the Namibian man is the biological father, rather than the Mexican spouse. While the issue is fought in the courts and government offices, the Namibian father, with the two babies, is stuck in SA and cannot legally cross into Namibia with the twins.
From Namibia’s high court comes a story, rather like The Terminal, a movie in which a man is stuck in an airport for months, refused entry into the USA yet unable to return to his home country because of a coup there.
This case, different but just as dramatic and frustrating for everyone involved, concerns a gay couple living in Namibia. One of the couple – they married in South Africa where laws permit gay marriage – is a Namibian, the other is from Mexico.
They are already involved in a legal battle over their first child, a boy, born in South Africa during 2019, and now the subject of an application that he be given Namibian citizenship by virtue of descent, since his father is Namibian. Judgment in that matter is due to be delivered later this year. But while they have been waiting to resolve the issue of their first child, the couple arranged a surrogacy mother in South Africa. She recently gave birth to twins. Now the Namibian father, who travelled to SA to be present at the birth, is unable to return with the babies because he does not have documents that will allow him to bring them into the country.
The father asked the court to order that the Namibian government provide the children with emergency travel documents, but this the court has decided it cannot do. Judge Thomas Masuku, who dealt with the matter, made it clear that he could exercise powers of judicial review only if there were in fact a prior decision by the relevant minister, the validity of which he could consider. The minister of home affairs and immigration has, however, not yet made a decision about the twins and so the judge said it would be judicial ‘over-reach’ if he were to issue an order for emergency travel documents.
Arguing for the travel papers, the father’s legal team said the position adopted by the minister in this case was ‘callous, disrespectful, irresponsible and downright malicious’, more especially given the consequences of the minister’s attitude. Counsel argued that the minister’s stance was inexplicable given that birth certificates, indicating he is the father, were issued by SA.
Now the father is stuck in SA. He needs to return to his home, his job and the rest of his family in Namibia. But if he brings the babies with him, he risks not being allowed to cross the border with them, and he cannot simply leave them behind. He is caught in a double-bind: he can’t stay where he is and he can’t go home.
The minister’s position is that the issue of whether the man was in fact the father of the twins has not been resolved. He said the authorities had required the man and the children to undergo a DNA test but that so far this had not happened. It was possible that the other spouse, who was not a Namibian citizen, was in fact the father, and if so, the children would not be entitled to Namibian citizenship. Such a test would remove all doubt, the minister argued.
According to the minister, the Namibian father had not applied for citizenship or for travel documents for the twins. Against this background, it would not be lawful for the court to order that emergency travel documents should be issued for the babies.
Judge Masuku said there was no application before the minister giving him the information he would need to make the decision on the twins. If an official application, with the required documentation, had been presented and the minister had then made a decision, then the father could have asked the court to review that decision if he were not satisfied with it.
He said courts should be careful not to be drawn in by ‘tempting circumstances’ to exercise power that vested in other organs of state.
‘It is not lost on the court’s mind that the matter … touches upon the interests of minor children, and other important constitutional principles that were referred to by counsel.’ But the same constitution provided for separation of powers and the court could not cross that line.
The judge said he reached this conclusion ‘with a very heavy heart’ as he fully understood that the case involved minor children who could be made stateless. ‘This court, being an upper guardian of minors would naturally be concerned by matters such as this.’
Though he found against the father, and refused to issue the emergency papers as requested, the judge ruled that even though the father had been unsuccessful, there would be no order as to costs, and that each side would pay its own costs.
For the moment, therefore, the family is split, half in SA and half in Namibia. What happens next is unclear, and the couple say they need to study the decision more closely before deciding what further steps to take.
What makes the future all the more uncertain is that the marriage between the two men is not recognised in Namibia. Gay sex is still a crime under Namibia’s laws, in theory at least. The country’s ombudsman, John Walters, whose job is to investigate complaints about violations of fundamental rights and freedoms, questions why the law is being maintained.
The Human Dignity Trust quoted a 2016 comment of Walters to the effect that there had been no prosecution under the sodomy laws for 20 years, that he believed the law had ‘served its purpose’ and that he personally saw nothing to stop same-sex marriage.
These comments have, however, not been endorsed or followed up by government. Mixed messages about change continue to emerge, and the men in this case are not the only same-sex couple to find themselves faced by an unsympathetic bureaucracy.