Case Commentary

International Journal of
Discrimination and the Law
Equality before the law and the 2023, Vol. 23(4) 321–337
© The Author(s) 2023
recognition of same-sex foreign
Article reuse guidelines:
marriages in Namibia: Digashu sagepub.com/journals-permissions
DOI: 10.1177/13582291231199370
and another v GRN and others; journals.sagepub.com/home/jdi

Seiler-Lilles and another v GRN

and others [2023] NASC 14

Jamil Ddamulira Mujuzi 

Abstract
Article 10(1) of the Constitution of Namibian provides for the right to equality before the
law. Article 10(2) prohibits discrimination on several grounds. The Constitution of
Namibia, unlike that of South Africa (1996), does not prohibit discrimination on the
ground of sexual orientation. However, unlike the Constitutions of some African
countries such as Uganda, Seychelles, Kenya and Zimbabwe, the Constitution of Namibia
does not prohibit same-sex marriages. Namibian law does not expressly prohibit same-
sex marriages. However, in Immigration Selection Board v Frank (2001), the Namibian
Supreme Court held that same-sex marriages were not allowed in Namibia. In Digashu
and Another v GRN and Others; Seiler-Lilles and Another v GRN and Others, dated 16 May
2023, the Supreme Court, by majority, invoked Article 10(1) and common law to
overrule its decision in Immigration Selection Board v Frank and to hold that Namibian law
should recognise same-sex marriages entered into abroad. However, the court declined
to express its opinion on whether discrimination on the ground of sexual-orientation is
prohibited in Namibia. In this note, the author argues, inter alia, that the list of grounds
under Article 10(2) is closed and that explains why the court did not rule that the
appellants had been discriminated against based on their sexual orientation; it was unlikely
for the government to succeed had it relied on the argument of public policy as the basis
for its refusal to recognise foreign same-sex marriages; and that the court unconsciously
developed common law on the issue of foreign marriages.

Department of Law, University of the Western Cape Faculty of Law, Bellville, South Africa

Corresponding author:
Jamil Ddamulira Mujuzi, Faculty of Law, University of the Western Cape, Private Bax X17, Bellville 7535, South
Africa.
Email: djmujuzi@gmail.com or jdmujuzi@uwc.ac.za
322 International Journal of Discrimination and the Law 23(4)

Keywords
Equality before the law, immigration selection board v frank, Digashu, sexual-orientation,
Namibia, foreign same-sex marriages

Introduction
Article 10(1) of the Constitution of Namibian provides that ‘[a]ll persons shall be equal
before the law.’ Article 10(2) states that ‘[n]o persons may be discriminated against on the
grounds of sex, race, colour, ethnic origin, religion, creed or social or economic status.’
The Constitution of Namibia, unlike that of South Africa (1996), does not prohibit
discrimination on the ground of sexual orientation.1 The Constitution of Namibia, unlike
the constitutions of some African countries such as Uganda,2 Seychelles,3 Kenya,4
Zimbabwe5 and South Sudan,6 does not prohibit same-sex marriages. Namibian marriage
law does not expressly prohibit same-sex marriages. Article 14 of the Constitution of
Namibia protects the right to a family and states that:

1. Men and women of full age, without any limitation due to race, colour, ethnic
origin, nationality, religion, creed or social or economic status shall have the right
to marry and to found a family. They shall be entitled to equal rights as to marriage,
during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending
spouses.
3. The family is the natural and fundamental group unit of society and is entitled to
protection by society and the State.

In Chairperson of the Immigration Selection Board v Frank and Another (2001),7

where a Namibian and a foreign national were in a same-sex relationship although not
married, the Namibian Supreme Court held that a ‘homosexual relationship, whether
between men and men and women and women, clearly fall [sic] outside the scope and
intent of Article 14.’8 The Court supported its decision by referring to, inter alia, the
relevant provisions of the African Charter on Human and Peoples’ Rights on the right to a
family.9 In Digashu and Another v GRN and Others; Seiler-Lilles and Another v GRN and
Others10 the Supreme Court, by majority, invoked Article 10(1) and common law to
overrule its decision in Immigration Selection Board v Frank and to hold that Namibian
law should recognise same-sex marriages celebrated abroad. The court declined to ex-
press its opinion on whether Namibian law should be interpreted as prohibiting dis-
crimination on the ground of sexual orientation. In this article, I discuss the issues
emerging from the court’s decision.
Mujuzi 323

The case
Factual background
Section 2 of the Immigration Control Act,11 provides, inter alia, that the Act, as a general
rule, does not apply to a ‘spouse’ of a Namibian citizen. This means, inter alia, that such a
spouse can apply for permission to live in Namibia on the ground that his/her ‘spouse’ is a
Namibian citizen. In other words, even if he/she does not qualify for other categories of
visas (such as permanent resident, study and work), he/she can stay in Namibian as a
spouse of a Namibian citizen. However, the Immigration Control Act does not define the
term ‘spouse.’ The appellants were Namibian and foreign nationals in same-sex marriages
celebrated outside Namibia – in South Africa and Germany respectively. The South
African national attempted to apply for permanent residence on the basis that he was
married to the Namibian (the marriage having taken place in South Africa) but he was
informed by the Namibian ministry responsible for immigration that Namibia did not
recognise same-sex marriages and that his application will not be allowed. He was advised
to apply for a work visa. Although he applied for it, his application was unsuccessful.12
The German applied for permanent residence for the purpose of retiring in Namibia (self-
supporting with sufficient means) and in her application she also disclosed her marriage to
the Namibian citizen. Her application for permanent residence was also rejected.13
The appellants approached the High Court and challenged the Minister’s decision to
the effect that they were not recognised as ‘spouses’ within the meaning of section 2 of the
Act. The High Court held that it was bound by the Supreme Court decision in Chairperson
of the Immigration Selection Board v Frank and Another (2001) and could not grant them
the remedy in question. In their appeal to the Supreme Court:

They both sought a declaratory order to the effect that the Ministry recognise their respective
marriages. They also sought an order declaring that the respective appellants are spouses as
envisaged by s 2(1)(c) of the Immigration Control Act…and in the event that the term
‘spouse’ could not be so interpreted, they sought an order that s 2(1)(c) be declared un-
constitutional and that this conflict with the Constitution be rectified by reading into it the
words ‘including persons lawfully married in another country’.14

The Court referred to several provisions of the Immigration Control Act15 and observed
that ‘[t]he spouse of a Namibian citizen is…entitled to reside in and to work in Namibia
without the need to obtain the permits otherwise required for non-citizens…’16 Against
that background, it observed that ‘[t]he central issue for determination…[was] whether the
refusal of the respondents to recognise lawful same-sex marriages of foreign juris-
dictions…between a Namibian and a non-citizen is compatible with the Constitution.’17

Submissions
The appellants argued that the Court’s decision in Chairperson of the Immigration
Selection Board v Frank and Another (2001) was distinguishable from the facts before
324 International Journal of Discrimination and the Law 23(4)

court because in the former, the parties were not married.18 They also argued that in
Chairperson of the Immigration Selection Board v Frank and Another (2001), the
constitutionality of section 2 of the Immigration Control Act was not challenged19 and
that the Court’s decision in that case that Article 14 excluded same-sex marriages in the
definition of a family was obiter and wrong.20 They also argued that the refusal by the
Ministry to recognise their same-sex marriages infringed their rights to dignity and
equality under Articles 8 and 10 of the Constitution respectively.21
The respondent argued, inter alia, that Chairperson of the Immigration Selection Board
v Frank and Another (2001) was rightly decided and that a family under Article 14 of the
Constitution does not include same-sex relationships and that marriage ‘is a union between
a man and a woman and excludes same-sex relationships and that the term ‘spouse’ in the
[Immigration Control] Act does not include those in a same-sex relationship.’22 He added
that the appellants cannot claim to have been discriminated against under Article 10(2) of
the Constitution because ‘unlike as in the South African Constitution, sexual orientation is
not a listed ground of proscribed discrimination in Art 10(2).’23 He also added that the
Supreme Court was correct in Chairperson of the Immigration Selection Board v Frank
and Another (2001) ‘with regard to the approach to Art 10(1) in stating that equality before
the law does not mean equality before the law for each person’s sexual relationships.’24

Judgment
The majority (Shivute CJ, Smuts JA, Damaseb DCJ and Hoff JA) held that the Court’s
decision in Chairperson of the Immigration Selection Board v Frank and Another (2001)
on Article 14 (that same-sex relationships are not recognised as families) was obiter as the
parties in that case did not raise that issue. This meant that neither the High Court nor the
Supreme Court was bound to follow it.25 On the issue of the status of the appellants’
marriages, the Court referred to the 1917 case of Seedat’s Executors v The Master (Natal)
and held that:

According to the well-established general principle of common law, if a marriage is duly

concluded in accordance with the statutory requirements for a valid marriage in a foreign
jurisdiction, it falls to be recognised in Namibia. That principle finds application to these
matters.26

The Court added that

The term ‘spouse’ is not defined in the Act. Its ordinary meaning connotes ‘a married person;
a wife; a husband’. The use of the term in s 2(1)(c) would not contemplate a wider meaning
than this, being a person who has entered a marriage. The term marriage is likewise not
defined in the Act and would contemplate valid marriages duly concluded and ordinarily
recognised, including those validly contracted outside Namibia in accordance with the law
applicable where the marriage is concluded in accordance with the general principle of
common law, already referred to. That is the interpretation to be given to the term ‘spouse’ in
s 2(1)(c).27
Mujuzi 325

The Court added that the Ministry did not raise ‘any reason relating to public policy as
to why the appellants’ marriages should not be recognised in accordance with this general
principle of common law. Nor did the Ministry question the validity of the appellants’
respective marriages.’28 The Court held that based on common law ‘alone’, the appel-
lants’ marriages should have been recognised.29
The Court held that the issue of the rights to dignity and equality had to be resolved
together because these rights ‘are closely related.’30 The Court explained the meaning of
the right to dignity.31 It held that although it is an independent right, the right to dignity
‘relates to the protection of other rights and in particular, the right to equality.’32 Against
that background, the court explained how the Ministry’s refusal to recognise the ap-
pellants’ marriages violated their right to dignity and how Parliament cannot invoke
public opinion against same-sex marriages and the principle of separation of powers to
justify its refusal to recognise same-sex marriages validly contracted abroad.33
On the issue of equality and freedom from discrimination under Article 10, the Court
referred to its earlier case law and held that ‘the tests to be applied in determining whether
there is discrimination under the two sub-articles differ.’34 It emphasised that under
Article 10(1) ‘[t]he questioned legislation would be unconstitutional if it allows for
differentiation between people or categories of people and that differentiation is not based
on a rational connection to a legitimate purpose.’35 On the other hand, under Article 10(2):

The steps to be taken in regard to this sub-article are to determine – (i) whether there exists a
differentiation between people or categories of people; (ii) whether such differentiation is
based on one of the enumerated grounds set out in the sub-article; (iii) whether such dif-
ferentiation amounts to discrimination against such people or categories of people; and (iv)
once it is determined that the differentiation amounts to discrimination, it is unconstitutional
unless it is covered by the provisions of art 23 of the Constitution.36

The Court observed that the appellants argued that the treatment to which they were
subjected amounted to discrimination on the grounds of ‘social status’ or ‘sex’ within the
meaning of Article 10(2). It held that the appellants ‘could refer to no authority in support
of the proposition that sexual orientation amounts to a social status. Nor could we find
any.’37 Against that background, it held that: ‘[i]n the absence of authority or evidence, we
decline the invitation to find that sexual orientation constitutes social status for the
purpose of Art 10(2) and thus leave that question open.’38 The Court added that the
appellant relied on the jurisprudence of the Human Rights Committee to argue ‘that “sex”
as a proscribed ground of discrimination in Art 10(2) includes sexual orientation.’39
However, the Court held that in the light of its decision under Article 10(1), it was ‘not
necessary’ to express itself on that submission.40
Referring to earlier case law, the court held that for an applicant to succeed in a claim
under Article 10(1), he/she has two tasks: firstly, he/she has the onus ‘to establish a
differentiation provided for in a statutory provision (or…in the application of a statutory
provision)’; and second, he/she must also show that ‘the differentiation in question is not
reasonable in the sense of not being rationally connected to a legitimate statutory object.’
The Court held that on the facts before it, ‘a differentiation has been established in the way
326 International Journal of Discrimination and the Law 23(4)

in which the Ministry treats non-citizen spouses in a heterosexual marriage as opposed to

those in a same-sex marriage for the purpose of s 2(1) of the Act.’41 The Court also
referred to its case law for the criteria to determine whether a differentiation ‘amounted to
unfair discrimination’ within the meaning of Article 10(2).42 It held that:

The unfairness of discrimination is thus to be determined with reference to the impact upon
the victim(s) discriminated against, the purpose sought to be achieved by the discrimination,
the position of the victim(s) in society, the extent to which their rights and interests have been
affected and their dignity impaired.43

Against that background, the Court demonstrated ‘[t]he impact of the differentiation’
on the appellants’ inability to cohabit as spouses.44 It referred to it as ‘form of dis-
crimination.’45 It held further that ‘[t]he purpose of prohibiting discrimination in Art 10 is
after all the emphatic recognition in the Constitution that all human beings are to be
accorded equal dignity which is impaired when a person is unfairly discriminated
against.’46 The Court also referred to Canadian and South African case law on the
importance of the right to equality and how it is closely related to the right to human
dignity.47 It concluded that the appellants were entitled to the declaratory orders sought.48
Relying on jurisprudence from Canadian and South African courts, it emphasised that its
decision in Chairperson of the Immigration Selection Board v Frank and Another (2001)
that family is meant for procreation was erroneous.49 It clarified that its judgement ‘only
addresses the recognition of spouses for the purpose of s 2(1) (c) of the Act and is to be
confined to that issue. The precise contours of constitutional protection which may or may
not arise in other aspects or incidents of marriage must await determination when those
issues are raised.’50
The minority (dissenting) judgement was written by Mainga JA. He started his
judgement by referring to three recent newspaper articles to demonstrate how contentious
the issue of same-sex relationships was in Namibia. The first article, by a Namibian
citizen, decried the fact the same-sex relationships have not been recognised in Namibia.51
The second article covered an interview with the British High Commissioner in Namibia
who reportedly said, inter alia, that in Namibia there was no evidence that people in same-
sex relationships were being persecuted.52 The third article quoted the Attorney-General
of Namibia explaining why it was still necessary for Namibia to criminalise sodomy.53 He
held that the case of Chairperson of the Immigration Selection Board v Frank and
Another (2001) was rightly decided and the High Court was bound to follow it.54 He
added that neither the Constitution nor any statute in Namibia recognises same-sex
relationships or marriages.55 He gave examples of pieces of legislation (all enacted after
the commencement of the Immigration Control Act) which specifically referred to
marriage as a union between man and woman.56 He held that all these laws were enacted
‘long’ after the adoption of the Constitution and were therefore in line with the Con-
stitution.57 He held that although the South African constitution prohibits discrimination
on the ground of sexual orientation, legislation had to be enacted to provide for the right of
people in same-sex relationships to get married.58 He demonstrated that before same-sex
marriage were recognised in South Africa, the South African High Court held that foreign
Mujuzi 327

same-sex marriages could only be recognised in South Africa if they were not against
public policy.59 He also held that the majority ‘conveniently overlooks’ the fact in the
1917 case of Seedat’s Executors v The Master (Natal), the court held that South African
courts do not recognise polygamous foreign marriages because they were opposed to
South African principles and institutions.60 He also demonstrated that English courts
refused to recognise foreign same-sex marriages on the basis of common law.61 He added
that the majority’s reliance on common law was ‘clearly fundamentally wrong’ and
‘trashes the historical, social and religious convictions of the Namibian people.’62 He
added that the common law rule invoked by the majority was not absolute and the
Ministry was justified in refusing to recognise foreign same-sex marriages.63 He also
demonstrated that many European countries recognised same-sex marriages recently after
legislative intervention.64 He emphasised that Article 14 of the Constitution did not
protect same-sex marriages and that international law does not obligate states to recognise
same-sex marriages.65 He held further that the Ministry was not required to ‘raise any
reason relating to public policy’ for refusing to recognise the appellants’ marriages.66 He
added that:

Marriage or traditional marriage as defined in common law, other statutes of the Republic and
the historic understanding of marriage as enshrined in the Constitution is as old as creation
itself and the protection of family in the traditional sense is in principle a weighty and
legitimate reason which might justify a difference in treatment.67

He reasoned that courts were ill-suited to handle the issue of same-sex marriages and
should rather leave it in the hands of the legislature.68 He concluded that the Ministry just
implemented the law and ‘did not discriminate against the appellants.’69 He ‘readily
conced[ed] that the laws of Namibia and not the Ministry discriminate against same-sex
relationships, but that fight should start with the Constitution.’70 Although he made the
above observation, he concluded that he found ‘no reason to enter into the argument raised
on dignity, discrimination and equality.’71

The analysis
Discrimination under Article 10(2)
The first issue that arises from the above decision is whether the appellants had been
discriminated against. Both the majority and the minority held that the appellants had been
discriminated against. As mentioned above, Article 10(2) provides for the prohibited
grounds of discrimination. As the majority observed, for the argument that one has been
discriminated against to succeed, one of the questions for the court to answer is ‘whether
such differentiation is based on one of the enumerated grounds set out in the sub-article.’72
This means that the appellants were required to demonstrate that they had been dis-
criminated against on one of the grounds under Article 10(2). They tried to do so by
arguing that the grounds of ‘sex’ and ‘social status’ should be interpreted broadly to
prohibit discrimination on the ground of sexual orientation. However, the Court declined
328 International Journal of Discrimination and the Law 23(4)

to express its opinion on this issue. Which means that the court did not find that Article
10(2) prohibits discrimination on the ground of sexual orientation. However, relying on its
case law on Article 10(1), it held that the appellants had been discriminated against
because the differential treatment violated their right to dignity in a serious manner. This
shows that under Article 10(1), a court can find that a person was discriminated against
without relying on any of the grounds under Article 10(2) provided that the differential
treatment impaired their dignity.
This raises another issue of whether the mere fact that international human rights law
prohibits discrimination on the ground of sexual orientation, Namibian law should also
prohibit discrimination on such a ground. Article 144 of the Constitution of Namibia
provides that ‘[u]nless otherwise provided by this Constitution or Act of Parliament, the
general rules of public international law and international agreements binding upon
Namibia under this Constitution shall form part of the law of Namibia.’ A close ex-
amination of Article 144 shows that the general rules of public international law and
international agreements binding on Namibia form part of Namibian law. There is no
general rule of public international law prohibiting discrimination on the ground of sexual
orientation73 and Namibia has not ratified any international agreement/treaty which
prohibits discrimination on the ground of sexual orientation.74 However, even if there was
such a general principle of public international law or agreement, Namibia can object to
such a ground in its constitution or Act of Parliament or by entering a reservation or
declarative interpretation at the time of ratifying the treaty. This is evidenced by the
opening part of Article 144 which implies that for such general principle of public in-
ternational law or agreement to form part of Namibian law, it should not be contrary to the
Constitution or an Act of Parliament. As the Canadian Supreme Court held, there are
circumstances in which a state can create an exception to the general rule of public
international law.75 At the international level, practice shows that Namibia is not yet
committed to stopping discrimination on the ground of sexual orientation. For example, it
is one of the countries which abstained from voting on the UN General Assembly
Resolution on ‘human rights, sexual orientation and gender identity.’76
Related to the above is the issue of whether the list of grounds under Article 10(2) is
exhaustive. This is an issue that the Court does not address in this case. However, its
earlier case law appears to answer this question in the affirmative. In Muller v President of
the Republic of Namibia77 the Court held that ‘any discrimination based on other grounds
than those mentioned in Article 10(2) will have to be dealt with and will have to be
brought in under Article 10(1) and/or Article 8(1), which provides that the dignity of all
persons shall be inviolable.’78 The Court added that unlike in the case of Canada or South
Africa where a rationale test is applied to enumerated grounds of discrimination,79 in
Namibia such a test is not applicable and that ‘[o]nce it is determined that a differentiation
amounts to discrimination based on one of these grounds [under Article 10(2)], a finding
of unconstitutionality must follow.’80 When dealing with Article 10(2), courts should not
entertain the ‘doctrine of reasonable classification.’81 The Court also held that ‘Article
10(2) of the Namibian constitution is not open ended regarding discrimination on other
grounds than those enumerated in the sub-article.’82 The Court held further that
Mujuzi 329

[T]he words “discriminate against” in Article 10(2) were intended to refer to the pejorative
meaning of the word “discriminate”, and not to its benign meaning. This stems from the fact
that the grounds enumerated in Article 10(2) are all grounds which in the past were singled
out for discrimination and which were based on personal traits where the equal worth of all
human beings and their dignity was negated.83

The fact that the list of the grounds in Article 10(2) is exhaustive could explain why the
applicants in Digashu and Another v GRN and Others; Seiler-Lilles and Another v GRN
and Others (2023) attempted, albeit unsuccessfully, to argue that the court should interpret
the grounds of ‘sex’ and ‘social status’ broadly to accommodate sexual orientation. This
was not the first time the court declined to interpret Article 10(2) broadly. It also did the
same when asked to interpret Article 10(2) broadly to prohibit discrimination on the
ground of disability. In Visser v Minister of Finance and Others (2014)84 the High Court
dealt with, inter alia, the question of whether the phrase ‘social status’ under Article 10(2)
could be interpreted broadly to prohibit discrimination on the ground of disability. The
Court urged the plaintiff’s lawyer to ‘cite any authority to support the contention that
being disabled amounted to a social status.’85 However, the lawyer was unable to do so
although he insisted with this submission that ‘being disabled did amount to a social status
as contemplated by art 10(2).’86 Since the plaintiff’s lawyer failed to cite any authority to
substantiate his argument, the Court held that Article 10(2) did not prohibit discrimination
on the ground of disability. On Appeal to the Supreme Court in Visser v Minister of
Finance and Others,87 the appellants reiterated their submission before the High Court
that ‘social status’ should be interpreted to include disability.88 However, the Supreme
Court found it unnecessary to address that issue since it could decide the case on other
grounds.89 It should be noted that in some African countries courts have interpreted
‘social status’ to include ‘a person’s standing in society’90 and a person’s profession.91
Since Article 10(2) was not applicable to the appellants’ case in Digashu and Another v
GRN and Others; Seiler-Lilles and Another v GRN and Others (2023), the court had to
invoke Article 10(1). It is to this issue that we turn.

Equality before the law under Article 10(1)

As mentioned above, the Court in Digashu and Another v GRN and Others; Seiler-Lilles
and Another v GRN and Others (2023) held that in terms of Article 10(1), ‘the questioned
legislation would be unconstitutional if it allows for differentiation between people or
categories of people and that differentiation is not based on a rational connection to a
legitimate purpose.’ Since Article 10(1) has to be read with Article 8, for an applicant to
succeed on the basis of Article 10(1), he/she must demonstrate that he/she has been
subjected to differentiation. The differentiation must violate his/her right to dignity. Once
he/she has discharged that burden, the respondent has a duty to prove that the differ-
entiation is ‘based on a rational connection to a legitimate purpose.’ The Supreme Court
held that Article 10(1) does not ‘mean absolute equality but equality between persons
equally placed.’92 In the case of Digashu and Another v GRN and Others; Seiler-Lilles
and Another v GRN and Others (2023) the state had to prove, according to the majority,
330 International Journal of Discrimination and the Law 23(4)

that the refusal to recognise the appellants’ same-sex marriage is meant to achieve ‘any
reason relating to public policy.’ This implies that the ‘legitimate purpose’ which the
Court referred to in Muller should relate to public policy. This raises two issues. Firstly,
whether, as the majority held, the state had to ‘raise any reason relating to public policy’
or, as the minority held, the state did not have that duty. If the state did not have a duty to
do so, can a court do so mero motu? Secondly, and related to the above, what amounts to
public policy? In other words, what criteria should be used to determine that a differ-
entiation serves ‘public policy’ or otherwise?
I will start with the second question. In Digashu and Another v GRN and Others;
Seiler-Lilles and Another v GRN and Others (2023) the Court does not define or describe
what amounts to ‘public policy.’ This is the case although it was the first time that it
invoked this criterion when applying Article 10(1) of the Constitution. There are cases in
which the court has invoked the concept ‘public policy’ but they relate to issues such as
the enforceability of a contract. However, since the Court has not defined what amounts to
‘public policy’ in the context of Article 10 of the Constitution, there is room for the
argument that the same criteria (or descriptions) laid down when dealing with other
branches of law apply with equal force (with the necessary modifications) to ‘public
policy’ in the context of Article 10. In Moolman and Another v Jeandre Development,93
the Court was dealing with the question of the enforceability of a contract which was
against public policy. Before determining whether the contract was enforceable on the
ground of public policy, the Court relied on South African case law for the description of
public policy as follows:

The interests of the community or the public are therefore of paramount importance in
relation to the concept of public policy. Agreements which are clearly inimical to the interests
of the community, whether they are contrary to law or morality, or run counter to social or
economic expedience, will accordingly, on the grounds of public policy, not be enforced.94

The Court added that:

Public policy represents the legal convictions of the community; it represents those values
that are held most dear by the society. Determining the content of public policy was once
fraught with difficulties. That is no longer the case. Since the advent of our constitutional
democracy, public policy is now deeply rooted in our Constitution and the values which
underlie it. Indeed, the founding provisions of our Constitution make it plain: our consti-
tutional democracy is founded on, among other values, the values of human dignity, the
achievement of equality and the advancement of human rights and freedoms, and the rule of
law.95

The Court held that the first description as ‘refined’ by the second one above ‘also
reflects the common law in Namibia, subject to the values embodied in the Namibian
Constitution informing public policy for the purpose of the common law in Namibia.’96
This means that the decision of whether the enforcement of a law is contrary to public
policy has to be determined, not only by the interests of the community, but also by the
Mujuzi 331

values that underpin the Bill of Rights. This implies that if there a conflict between the
interests of community and the values that underpin the Bill of Rights, the later take
precedence. This could explain why in Digashu and Another v GRN and Others; Seiler-
Lilles and Another v GRN and Others court held that:

Whilst public opinion expressed by the elected representatives in Parliament through leg-
islation can be relevant in manifesting the views and aspirations of the Namibian people, the
doctrine of the separation of powers upon which our Constitution is based means that it is
ultimately for the court to determine the content and impact of constitutional values in
fulfilling its constitutional mandate to protect fundamental rights entrenched in the Con-
stitution. That is the very essence of constitutional adjudication which is at the core of our
Constitution.97

In Sibonga v Chaka and Another,98 the Court held that public policy is informed by
common law and ‘by our constitutional values and the changing nature of the prevailing
norms of society.’99 These constitutional values include ‘equality in marriage, human
dignity and privacy’100 and the right to be heard.101 In other words, ‘public policy is now
embedded in the values enshrined in the Constitution.’102 It was also held that equality
before the law and non-discrimination ‘may rightly be said to be fundamental aspects of
Namibian public policy.’103
It can therefore be inferred from this jurisprudence that a decision taken in the interests
of public policy should be informed by constitutional values as explained by the Supreme
Court in the cases above. Applying the above understanding to the facts in Digashu and
Another v GRN and Others; Seiler-Lilles and Another v GRN and Others (2023), one can
argue that it would have been very difficult for the state to convince the court that its
decision not to recognise same-sex foreign marriages was in the interest of public policy.
Another issue is whether the court can raise the issue of public policy mero motu. In
Moolman and Another v Jeandre Development,104 the Court held that ‘courts may mero
motu decline to enforce an agreement which is against public policy or is illegal.’105 This
means that even in the context of Article 10(1), a court can declare legislation uncon-
stitutional even if the applicant or the state does not raise the issue of public policy.106
However, the issue may also be raised by one of the parties to the proceedings.107
Perhaps of great implications is the court’s reliance on common law (Seedat’s case) as
the basis to conclude that Namibia should recognise foreign marriages even if they are
contrary to Namibian marriage laws. As correctly pointed out by the minority decision, in
Seedat’s case, the court held that the principle it established was not applicable to po-
lygamous marriages because such marriages were contrary to South African law. This
means that it was limited to marriages with the same ‘features’ as those recognised in
South African law at the time – monogamous marriages. However, the Court Digashu and
Another v GRN and Others; Seiler-Lilles and Another v GRN and Others (2023) does not
provide such exception. Had it retained that exception, there is a very high possibility that
it would not have faulted the Ministry for refusing to recognise the appellants’ marriages
(at least on the basis of common law). It would appear that the Court, unconsciously,
developed the common law.108 As the Court held in Trustco Group International Ltd and
332 International Journal of Discrimination and the Law 23(4)

Others v Shikongo109 Namibia is a common law system and ‘[a] common-law legal
system is based upon the principle that the courts will develop the common law on an
incremental basis. Common law is judge-made law and from time to time it needs to be
developed to take account of changing circumstances.’110 The Court also held that ‘it may
be necessary in appropriate cases to develop the common law to bring it in line with the
values espoused in our constitution.’111 However, this indirect development of the
common law is likely to have unintended consequences and serious policy implications. It
means, inter alia, that any marriage celebrated abroad can be recognised in Namibia for
the purposes of immigration. What is unlawful in Namibian law has become lawful
simply because it was done outside Namibia and ‘imported’ into Namibia.

Concluding remarks
The court’s decision has serious implications and it has been criticised by several
members of Parliament.112 Some people, especially human rights activists, are likely to
argue that there is a need for Namibia to legalise same-sex marriages conducted ‘locally.’
This is because recognising foreign same-sex marriages is likely to create the impression
that those who have the means to conduct foreign same-sex marriages are able to get
married and Namibians who cannot travel abroad to conduct their marriages cannot enter
into same-sex marriages. There is a possibility that some people will approach court and
argue that this differential treatment violates Article 10 of the Constitution. There are
different ways, short-term and long term, in which the government of Namibia is likely to
respond to the court’s ruling. In the short-term, the government will recognise the
marriages of the appellants in the case and issue them the relevant visas as spouses.
Otherwise, the relevant government officials will be held in contempt of court.113 In the
long term, Parliament may amend the Immigration Act to define the term ‘spouse’ to mean
those in heterosexual marriages. As demonstrated in the minority judgement, there are
pieces of legislation in Namibia which adopt this approach. This is possible on the basis of
Article 81 of the Constitution which provides that ‘[a] decision of the Supreme Court shall
be binding on all other Courts of Namibia and all persons in Namibia unless it is reversed
by the Supreme Court itself, or is contradicted by an Act of Parliament lawfully enacted.’
For an Act to be lawfully enacted within the meaning of Article 81, it should comply with
at least two requirements – procedurally and substantively. Procedurally, the enactment
process must comply with the Constitution. This means, inter alia, that Parliament should
follow all the necessary legislative steps, including, for example, public participation in
the process and the President must assent to the Bill in accordance with Article 56 of the
Constitution. Substantively, the Act must not be inconsistent with any constitutional
provision. Should the Act fail to meet both requirements, courts will declare it uncon-
stitutional. It is also possible, on the basis of Article 81, for the Supreme Court to reverse
its decision.114 However, in this case this is very unlikely as an overwhelming number of
judges were in the majority. The court can only reverse its decision when it is convinced
that it was wrong.115 There is precedent in which the Supreme Court reversed its de-
cision.116 Another option would be to amend the constitution to expressly prohibit same-
sex marriages. However, any of the above attempts made to reverse the Court’s decision is
Mujuzi 333

likely to meet stiff resistance from human rights activists and organisations/bodies. It has
been illustrated above that case law from the Supreme Court shows that the list of the
prohibited grounds of discrimination under Article 10(2) is exhaustive. This raises the
question of whether there are other grounds against which a person may not be dis-
criminated against apart from those enumerated Article 10(2) of the Constitution. Article
144 of the Constitution of Namibia provides that international treaties ratified by Namibia
form part of Namibian law. This means, inter alia, that if an international treaty ratified by
Namibia prohibits discrimination on a ground which is not mentioned in Article 10(2),
discrimination on such a ground is also prohibited under Namibian law. For example,
although the Constitution does not prohibit discrimination on the ground of disability,
Namibia ratified the International Convention on the Rights of Persons with Disabilities
(2006) which expressly prohibits discrimination on the ground of disability (Articles 2–
4). Therefore, it is against Namibian law to discriminate against any person on the ground
of disability. Likewise, although the Constitution does not prohibit discrimination on the
grounds of political or other opinion and birth, these grounds are expressly prohibited
under Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR)
(1966) which Namibia ratified in 1994. As a result, Namibian law prohibits discrimination
on these grounds. Namibia also ratified the ILO Convention on Discrimination (Em-
ployment and Occupation) Convention, 1958 (No. 111), which, amongst other grounds,
prohibits discrimination on the ground of age (Article 5). Apart from international in-
struments, some pieces of legislation also prohibit discrimination on grounds which are
not mentioned in Article 10(2) of the Constitution. For example, section 2(1)(h) of the
Child Care and Protection Act (2015) prohibits discrimination against a child on the basis
of his/her parents’ marital status. Likewise, 26(1) of the Employment Services Act (2011)
prohibits discrimination on grounds such as marital status or family responsibilities,
degree of physical or mental disability, AIDS or HIV status and pregnancy. In 2016, the
Namibian government informed the Committee on the Elimination of Racial Discrim-
ination that it had enacted legislation which prohibits discrimination on many grounds
including age and disability.117 This discussion shows that in Namibia, the prohibited
ground(s) of discrimination could be constitutional (based on one of the grounds under
Article 10(2)), conventional (based on one of the treaties ratified by Namibia) or statutory
(based on legislation enacted by Parliament).118

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/
or publication of this article.

Funding
The author(s) received no financial support for the research, authorship, and/or publication of this
article.

ORCID iD
Jamil Ddamulira Mujuzi  https://orcid.org/0000-0003-1370-6718
334 International Journal of Discrimination and the Law 23(4)

Notes
1. Section 9(3) of the Constitution of South Africa (1996).
2. Article 31(2a) of the Constitution of Uganda (1995).
3. Article 32(2) of the Constitution of Seychelles (1993).
4. Article 45(2) of the Constitution of Kenya (2010).
5. Article 78(3) of the Constitution of Zimbabwe (2013).
6. Article 15 of the Constitution of South Sudan (2011).
7. Chairperson of the Immigration Selection Board v Frank and Another [2001] NASC 1
(hereafter Frank).
8. Ibid, [119].
9. Ibid, [120].
10. Digashu and Another v GRN and Others; Seiler-Lilles and Another v GRN and Others [2023]
NASC 14 (hereafter Digashu).
11. Act 7 of 1993.
12. Ibid, [6].
13. Ibid, [8].
14. Ibid, [10].
15. Ibid, [13–15].
16. Ibid, [16].
17. Ibid, [20] & [96].
18. Ibid, [50].
19. Ibid, [51].
20. Ibid, [52–53].
21. Ibid, [56].
22. Ibid, [58].
23. Ibid, [58].
24. Ibid, [58].
25. Ibid, [60–81].
26. Ibid, [82].
27. Ibid, [83] (the court referred to a dictionary for the interpretation of the meaning of the word
‘spouse’).
28. Ibid, [84].
29. Ibid, [85].
30. Ibid, [96].
31. Ibid, [97].
32. Ibid, [98].
33. Ibid, [99–109].
34. Ibid, [111].
35. Ibid, [111].
36. Ibid, [111].
37. Ibid, [114].
38. Ibid, [115].
39. Ibid, [116].
Mujuzi 335

40. Ibid, [117].

41. Ibid, [119].
42. Ibid, [121].
43. Ibid, [122].
44. Ibid, [123].
45. Ibid, [124].
46. Ibid, [126].
47. Ibid, [126–127].
48. Ibid, [128–130].
49. Ibid, [131–133].
50. Ibid, [134].
51. Ibid, [137].
52. Ibid, [138–139].
53. Ibid, [140–141].
54. Ibid, [142–145].
55. Ibid, [146].
56. Ibid, [146].
57. Ibid, [147].
58. Ibid, [153].
59. Ibid, [155–161].
60. Ibid, [162].
61. Ibid, [163–168].
62. Ibid, [169].
63. Ibid, [170].
64. Ibid, [171–173].
65. Ibid, [174].
66. Ibid, [176].
67. Ibid, [176]
68. Ibid, [179–181].
69. Ibid, [182].
70. Ibid, [182].
71. Ibid, [183].
72. Ibid, [111].
73. It has been argued that ‘General rules of public international law are rules of universally
applicable customary international law that are complemented by general legal principles
derived from national legal systems.’ See Igor SPIROVSKI, ‘The Competence of the
Constitutional Court to Control the Conformity of Laws with International Treaties: New
Trends in Constitutional Justice’ (17 November 2009) 5. Available at https://www.venice.coe.
int/webforms/documents/default.aspx?pdffile=CDL-JU(2009)036-e
74. An international treaty becomes part of Namibian law once Namibia has ratified it or acceded
to it. See for example, IJT v AIE [2012] NASC 19 at [16]; S v Henock and Others [2019]
NAHCMD 466 at [11]; S v Mushwena and Others [2004] NASC 2.
336 International Journal of Discrimination and the Law 23(4)

75. R v Cook 1998 CanLII 802 (SCC), [1998] 2 SCR 597 at [53] (in this case the court created an
exception to the general rule of public international law ‘that a state cannot enforce its laws
beyond its territory.’)
76. General Assembly Resolution 27/32, Human rights, sexual orientation and gender identity,
A/HRC/RES/27/32 (2 October 2014).
77. Muller v President of the Republic of Namibia [1999] NASC 2.
78. Ibid, [12].
79. Ibid, [13].
80. Ibid, [14].
81. Ibid, [14].
82. Ibid, [17].
83. Ibid, [18].
84. Visser v Minister of Finance and Others [2014] NAHCMD 321.
85. Ibid, [67].
86. Ibid, [67].
87. Visser v Minister of Finance and Others [2017] NASC 10.
88. Ibid, [25].
89. Ibid, [28].
90. Chileshe v Zambia Consolidated Copper Mines Limited [1996] ZMSC 18 p. 3 (Zambia).
91. Ralekoala v Minister of Human Rights, Justice and Constitution Affairs and Others [2012]
LSHC 8 [59] (Lesotho).
92. Government of the Republic of Namibia and Others v Mwilima and Others [2002] NASC
8 p. 33.
93. Moolman and Another v Jeandre Development CC [2015] NASC 32.
94. Ibid, [62] (relying on the South African case of Sasfin (Pty) Ltd v Beukes 1989(1) SA 1 (A)).
95. Ibid, [63] (relying on the South African case of Barkhuizen v Napier 2007 (5) SA 323 (CC)).
96. Ibid, [65].
97. Digashu (n 10) [103].
98. Sibonga v Chaka and Another [2016] NASC 16 (hereafter Sibonga).
99. Ibid, [34].
100. Ibid, [39].
101. Brink N.O, and Another v Erongo All Sure Insurance CC and Others [2018] NASC
393 at [37].
102. In Re: Kazekondjo and Others v Minister of Safety and Security and Others [2021] NASC
43 at [19].
103. S v Van Wyk (1) [1991] NASC 6 at [4] (decision by Berker, CJ).
104. Moolman and Another v Jeandre Development CC [2015] NASC 32.
105. Ibid, [28].
106. See also Swart v Tube-O-Flex Namibia (Pty) Ltd and Another [2016] NASC 15, in which the
court raised the issue of public policy mero motu.
107. Woker Freight Services (Pty) Ltd v Commissioner for Customs and Excise and Others [2016]
NASC 7 at [59]; Prosecutor-General v Namoloh and Others [2020] NASC 18.
108. The Court has explained that it has the power to develop the common law. See Sinonga (n 89).
109. Trustco Group International Ltd and Others v Shikongo [2010] NASC 6.
Mujuzi 337

110. Ibid, [34].

111. Minister of Safety and Security and Others v Mahupelo Richwell Kulisesa [2019] NASC
2 at [59].
112. See S Petersen, E Ndeyanale and A Thomas, ‘Katjavivi cautions MPs on LGBTQI+ hate
speech’ 24 May 2023. Available at https://www.namibian.com.na/katjavivi-cautions-mps-on-
lgbtqi-hate-speech/
113. For the law on contempt of court in Namibia, see for example, Government of the Republic of
Namibia v Sikunda [2002] NASC 1.
114. For the interpretation of Article 81 (on the power of the court to reverse its decision), see
Kamwi v Law Society of Namibia (1) [2010] NASC 16.
115. Schroeder and Another v Solomon and Others [2010] NASC 11 at [18–19].
116. Likanyi v S [2017] NASC 10.
117. Committee on the Elimination of Racial Discrimination examines the report of Namibia
(06 May 2016). Available at https://www.ohchr.org/en/press-releases/2016/05/committee-
elimination-racial-discrimination-examines-report-namibia. However, the combined report
which Namibia submitted to the Committee on the Elimination of Racial Discrimination is
silent on which legislation which prohibits discrimination on the ground of age, see Namibia’s
13th to 15th periodic reports, CERD/C/NAM/13-15 (6 March 2015).
118. For the differences between common law, statutory and constitutional rights, see Swakop
Uranium v Employees of Swakopm Uranium as Per Schedule Annexure ‘POC1’ and Others
[2022] NASC 36. For the difference between constitutional and conventional rights, see S v
Gaingob and Others [2018] NASC 4.