Gay couple's bid to overturn Supreme Court judgment fails
Apex court stands firm on its decision
A same-sex couple's battle to obtain citizenship for their son was dealt another blow after their application challenging a Supreme Court judgment was blocked last week.
The Supreme Court has declined a request to reopen a case regarding the citizenship of a same-sex couple’s child.
Through his lawyer Uno Katjipuka-Sibolile, Namibian Phillip Lühl – who shares four-year-old son Yona with his Mexican partner Guillermo Delgado – petitioned the Supreme Court last week, demanding that it invoke its jurisdiction in terms of Section 81 of the Namibian Constitution and reopen the case.
Section 81 states that a Supreme Court decision is binding on all other Namibian courts and all persons in the country, unless it is reversed by the apex court itself, or is contradicted by an Act of Parliament.
According to Lühl, the Supreme Court was misled by home affairs minister Frans Kapofi when he said the couple should register their child. When they attempted to do so, the ministry “shut the door in their faces” as these options were not available to them, he said.
“I submit to the court that the process the minister insisted was available to us was not - in fact - available or necessary. This court would have determined the appeal on merits. Instead, on account of the minister’s misrepresentation, my son and I have suffered a grave injustice that cries out for a remedy.
“We have no decision on the merits and, at the same time, we are unable to follow the path laid out by this court because the ministry refuses to register the birth on the grounds that this process does not apply to our situation,” Lühl said.
Appeal
In October, the High Court ruled that Yona, born in South Africa through surrogacy, could be granted Namibian citizenship by descent.
However, the home affairs minister appealed this judgment, and succeeded when five Supreme Court judges set it aside last month, saying it was erroneous.
The matter was heard on 6 March by Chief Justice Peter Shivute, deputy chief justice Petrus Damaseb and justices Sylvester Mainga, David Smuts and Theo Frank.
“Seeing that the birth of the boy was not registered in terms of the Namibian law on citizenship, the High Court was not in a position to grant citizenship,” the ruling read.
The judges further said the couple’s failure to register Yona’s birth in Namibia was reason enough to reject Lühl’s application, and therefore the court did not deal with the rejection of the ministry’s counter-application - which requested DNA from Lühl to prove paternity.
Lühl and Delgado are also parents to twin daughters, Maya and Paula, who were born in South Africa via surrogate in 2021.
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Through his lawyer Uno Katjipuka-Sibolile, Namibian Phillip Lühl – who shares four-year-old son Yona with his Mexican partner Guillermo Delgado – petitioned the Supreme Court last week, demanding that it invoke its jurisdiction in terms of Section 81 of the Namibian Constitution and reopen the case.
Section 81 states that a Supreme Court decision is binding on all other Namibian courts and all persons in the country, unless it is reversed by the apex court itself, or is contradicted by an Act of Parliament.
According to Lühl, the Supreme Court was misled by home affairs minister Frans Kapofi when he said the couple should register their child. When they attempted to do so, the ministry “shut the door in their faces” as these options were not available to them, he said.
“I submit to the court that the process the minister insisted was available to us was not - in fact - available or necessary. This court would have determined the appeal on merits. Instead, on account of the minister’s misrepresentation, my son and I have suffered a grave injustice that cries out for a remedy.
“We have no decision on the merits and, at the same time, we are unable to follow the path laid out by this court because the ministry refuses to register the birth on the grounds that this process does not apply to our situation,” Lühl said.
Appeal
In October, the High Court ruled that Yona, born in South Africa through surrogacy, could be granted Namibian citizenship by descent.
However, the home affairs minister appealed this judgment, and succeeded when five Supreme Court judges set it aside last month, saying it was erroneous.
The matter was heard on 6 March by Chief Justice Peter Shivute, deputy chief justice Petrus Damaseb and justices Sylvester Mainga, David Smuts and Theo Frank.
“Seeing that the birth of the boy was not registered in terms of the Namibian law on citizenship, the High Court was not in a position to grant citizenship,” the ruling read.
The judges further said the couple’s failure to register Yona’s birth in Namibia was reason enough to reject Lühl’s application, and therefore the court did not deal with the rejection of the ministry’s counter-application - which requested DNA from Lühl to prove paternity.
Lühl and Delgado are also parents to twin daughters, Maya and Paula, who were born in South Africa via surrogate in 2021.
[email protected]
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