JUDGE MASUKU’S NAMIBIA JUDGMENT ON GAY COUPLE CRITICISED

MBABANE – A judgment delivered by Eswatini-born Judge Thomas Masuku has come under heavy criticism by some human rights activists, especially those advocating for gay rights.

The judge, on Monday, had the unenviable task in the High Court of Namibia to rule on a case involving a gay couple trying to obtain travel documents for their twin daughters, born to a surrogate in South Africa, after authorities refused to do so on the basis the infants were not citizens. Namibian Phillip Lühl and his Mexican husband Guillermo Delgado had already been fighting for citizenship for their two-year-old son when the twins, born in March, were refused the documents required to enter Namibia. Namibian authorities said Lühl must prove a genetic link to the children.

Separated

Monday’s ruling means the family will remain separated, with Luhl in South Africa with the twins and Delgado in Namibia with the couple’s son, while a judgment in their larger citizenship case is pending according to Times Live. In his summary of the judgment, Judge Masuku said Luhl had approached the court seeking a mandatory interdict compelling the minister of Home Affairs in Namibia to issue temporary travel documents to his children who were in South Africa and born to him and his partner through surrogacy. Luhl had written a letter to the minister’s legal practitioners, suggesting that the minister issues the emergency travel documents, pending a matter between the parties which awaits judgment. The minister declined the suggestion and proposed that the parties await the judgment. This prompted the applicant to launch an urgent application compelling the minister to issue the travel documents, in what was a final mandatory interdict.

The judge stated that the applicant ought to have filed an application for the issuance of the travel documents before the minister in terms of the law and then requested him to consider the application on an expedited basis if necessary. Masuku held that to give in to the entreaties of the applicant in the present circumstances, would amount to the court impermissibly violating the doctrine of separation of powers and there arrogating upon itself powers that the law had decreed should rest in the minister.

“Although the court appreciates its role as the upper guardian of all minors, it would be precipitous for it and would amount to judicial overreach for it to grant the order prayed for, lying as it does, within the constitutional mandate of the minister, the court being able to intervene on review,” said the judge.

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