Twenty years is a lifetime in the law, especially when outdated laws and legal concepts have to be re-considered in the light of modern constitutional principles.
That’s one reason that a notice of appeal, filed by the Namibian government last week, points to a supreme court matter that could prove most interesting.
The appeal is against an important decision delivered by high court judge Thomas Masuku earlier in October. The court found in favour of Phillip Luehl, a Namibian man who had asked that his child, born in South Africa of a legal surrogacy arrangement with a South African woman, should be given Namibian citizenship.
What made the application something really out of the ordinary was that the father is married, in terms of SA law, to another man, who is a Mexican, and not a Namibian. This introduced the spectre of gay marriage, not to mention anti-gay discrimination, into the case, though whether it ought to have done so will be up to the supreme court to decide when it finally hears the appeal.
The Windhoek government has been largely acting as though gays and lesbians, same-sex relationships and marriage, all do not exist. But in the public mind, this case, though it is actually about surrogacy and its consequences, has taken the lid off the gay issue as well.
Masuku was faced with Luehl’s application for his child’s registration as a citizen while the government’s insisted that the child should first have a DNA test before any decision was possible. The test would establish which of the two men was actually the father, said the department. If Luehl, the child could claim citizenship by descent. But if his spouse was the father, then Namibian citizenship would be refused.
Masuku granted Luehl’s application, roundly rejecting the approach of the minister of home affairs and immigration that a paternity test was required. The central argument of the decision was not based on any suggestion that the government’s attitude was discriminatory, and the judge mentioned the problem of the constitutional rights to equality and non-discrimination almost as an aside, near the end.
‘Insidious’ discrimination had reared its ugly head in the case, said the judge. ‘It must be chopped off, because it does not resonate with the vision of the founding mothers and fathers of this nation, who conceived Namibia … to be a secular state, founded on the rule of law and justice for all. I may add that the “for all” applies to all people in Namibia, regardless of colour, gender, sexual orientation etc.’
In its notice of appeal, the minister said that the court had ignored the fact that the language of the Namibian constitution was ‘gender specific’, an argument that goes to the question of how children of legal surrogacy arrangements, concluded in another country, should be regarded in Namibia.
But it also takes issue with Masuku’s findings on discrimination based on the fact that the parents of the child are gay. Outlining the basis of its appeal, the government referred to the 2001 decision of the supreme court in the case of Erna Frank, a matter that involved a lesbian couple. In that matter, says the notice of appeal, Namibia’s ‘non-recognition of gay stance’ was ‘laid down’.
Indeed, the majority in that case delivered a judgment that was hardly sympathetic to the women involved.
The chief justice at the time, Johan Strydom, delivered a minority decision in which he decided the matter without reference to the issue of the parties being lesbians. The other two judges found that lesbian relationships were not ‘recognised’ in Namibia.
In its decision, the majority stressed that Namibia had become a sovereign independent country relatively recently and that ‘the whole of Namibia is undergoing a learning process’ about how the old and new laws should be interpreted and applied given the new constitution. A ‘new learning process’ was under way and everyone had to be ‘patient and understanding’.
The majority put the words ‘lesbian relationship’ into parenthesis, as though this was a different language, using foreign words, and added that such a relationship was ‘very controversial’ in Namibia, raising ‘grave and complicated humanitarian, cultural, moral and most important, constitutional issues’ which would take time to resolve.
Since that decision was delivered, however, 20 years have passed. None of three judges who decided the Frank case is still on the supreme court bench and the present judges are much less conservative, timid even, in their approach to constitutional decision-making. The court has become more confident about deciding matters relating to the constitution; its judges are more in touch with real life and could probably write words like lesbian relationship without resorting to quotation marks.
But will they need to get to the discrimination question? For several reasons, they may well prefer to decide the case without going that far. The original outcome, to be challenged on appeal, was not based on the question of apparent discrimination and so the appeal could, at least in theory, be decided on the central issues raised and dealt with by Masuku.
In addition, there’s the court’s awareness that a number of cases squarely raising gay rights are pending, and the judges may well prefer to deal with the issue when it is central to the matter before them.
The Luehl decision raises a number of issues related to surrogacy including Namibia’s attitude to such arrangements concluded in another country including the validity in Namibia of the precise language of the documents issued by the other country.