by Max Fuchs, 11/10/2021
They might be the most famous rainbow family in Namibia – the family of Philip Lühl, Guillermo Delgado and their children Yona, Maya and Paula. The reason behind their fame are several court cases against the Ministry of Home Affairs, Immigration, Safety and Security (MHAISS) in their fight to be able to live together as family in Namibia.
On Monday, September 13th 2021, I met with Philip at Café Prestige for an interview about their struggles with the ministry, the support they get from civil society and how Corona even expends the waiting time for the verdicts. Since he is a German speaking Namibian we held the interview in our common native language German. Therefore, direct citations are given in German but are translated into English in brackets.
Fighting for citizenships
The first time Philip and me met was at High Court in the beginning of August 2021 when the verdict on the citizenship of Yona was expected. Yona was born to Guillermo and Philip through surrogacy in Durham, South Africa, two and a half years ago in 2019. According to Philip his son has the right to the Namibian citizenship through decent since he is born to a Namibian. After Yona was born his fathers requested a temporary entrance permit for their son at the Namibian Embassy in Pretoria. As soon as they entered Namibia, Philip and his Mexican husband applied for the Namibian citizenship for their son. The MHAISS denies the citizenship so far though. They argue that the two fathers would need to proof a “genetic link” between Philip and Yona so that he can get the citizenship by descent. Implicitly the ministry would claim a child could not have two fathers, Philip criticizes.
He explains that in his opinion the ministry is misinterpreting the South African surrogacy law. This law says that there has to be at least one genetic link between one parent and the child. However, once the agreement with the surrogate mother is signed and confirmed by court the two fathers become the legal parents. According to Philip this law protects the interests of both sides – the fathers to get the child and the surrogate mother to not be left behind with a child she did not want to keep. Thus, the “genetic link” is a requirement to the surrogacy agreement but once the agreement is confirmed by court and the child is born the two fathers are the legal parents independent from a genetic link and by that the child has the right to citizenship by descent. The MHAISS interpreted the South African law that there has to be a genetic link to Philip since he is the Namibian citizen to prove his parenthood and Yona’s right to the Namibian citizenship, Philip supposes.
Besides, there is no word about the need to prove a genetic link to acknowledge legal parenthood in Namibian law, he adds. Only the Children Protection Act rules that a DNA test can be required to proof parenthood in cases of dispute paternity. But the case of Yona is a complete different context and no one is disputing the parenthood.
Bring Paula and Maya Home
The case on Yona’s citizenship has been going on since he was born more than two years ago. In April 2021, Philip and Guillermo got two more children through surrogacy in South Africa; their twin daughters Paula and Maya. Once Philip welcomed the girls into life he requested temporary entrance permits for his children again. This time the ministry even denied the entrance.
Already before Maya and Paula were born, Guillermo and Philip wrote a letter to the MHAISS requesting if they could get emergency travel documents again although they knew the case of Yona was not judged yet. The ministry answered them that they would not get the travel documents. Therefore, the two gay fathers did not even apply for them. Then, when Philip wanted to come back with the twins to Namibia he was not allowed to enter the country.
An emergency request at the court for family separation failed. The judge accused the fathers that they did not apply for the travel documents the ministry already told them they would not get. Paula and Maya became stateless. Thus, Philip and Guillermo decided to apply for the travel documents and Philip went to the Namibian Embassy in Pretoria again. Three weeks did pass and the MHAISS did not answer. Additionally, the minister changed meanwhile what expended the period even more. The fathers started an emergency request at the court again since they had done everything the judge demanded from them. Two days later they got the travel documents eventually, Philip could enter Namibia with the twins and the family was reunited in Windhoek. Protests of Namibia’s queer community in Windhoek’s streets supported the demand to bring Paula and Maya home. The question about the Namibian citizenship is still open. However, before Philip left South Africa with Maya and Paula the fathers applied for the Mexican citizenship for all three of their children since Guillermo is a Mexican citizen. Philip says there were some complications as well but in the end Yona, Maya and Paula got the Mexican citizenships and are not stateless anymore at least.
Case number three: Guillermo’s domicile
Another reason why the Lühl-Guillermo family was separated was not only the struggle of Philip to enter Namibia with Maya and Paula who do not have the Namibian citizenship but also the insecure status of Guillermo who waited together with Yona, who has no Namibian citizenship as well, in Windhoek. When Philip and Guillermo married in South Africa they applied for domicile for Guillermo in Namibia. The domicile status is given to the non-Namibian spouse of a Namibian citizen which means a permanent right to stay, leave and re-enter the country as well as a working permit for the spouse without the Namibian citizenship. Surprisingly, Guillermo got the domicile status when they applied for it the first time although it was never given to same-sex partnerships before. However, the domicile status needs to be renewed periodically. Several requests how far the status of processing to renew Guillermo’s domicile was were always answered that it were still in process. Then, when Guillermo was going with his sister from Katima Mulilo in Namibia’s North for a day trip to the Victoria Falls in Zambia he was denied to enter Namibia again suddenly. His domicile status would have been denied. Philip claims this as one of the problems; although you have the right to stay legally as long as a certain process is still ongoing, this also concerns the status of the three children as long as their court cases are not judged yet, the reality means a lot of insecurity to get chased out of the country from one day to the other. Fighting for Guillermo’s domicile is the third court case the Lühl-Delgado family struggles with. At the moment, Guillermo stays with work permits but those permits could not get extended anymore suddenly, too, Philip expresses his concerns. Guillermo also applied for permanent residency already twice but both times it was denied.
Support and the meaning of class
Despite the struggle with the MHAISS and the ongoing court cases the family has never experienced harassment or any negative responses in last the ten years they already have been living together as a couple in Namibia. Since all the media attention on the case of Maya and Paula people would have been even recognizing them in the streets as “the ones with the twins”. The feedback would always be positive, especially if they are together with the children.
“Ich denke, dass da einfach sozial doch sehr viel mehr Toleranz da ist, als die Politiker sich das vorstellen können und zugestehen.” (Philip)
(I think there is just more social tolerance [in society] than politicians can imagine and admit.)
In the past, politicians and even the Supreme Court argued against equality for same-sex relationships on the ground that public opinion would be opposed to it. Philip does not believe that this is true (anymore).
However, he also considers the reactions of the direct environment as a matter of the social networks people live in. They are glad to have a network of family, friends and colleagues which is tolerant while living in a small village could be tougher. He knows that trans persons get way less support in their fights and cases. Additionally, Philip and Guillermo are not walking in the streets holding hands, something Philip thinks they also would not do in any other place because they are not the type for that but which might let them pass straight in public.
Sometimes there would be mean comments on social media or in newspapers but they try to not pay attention to them. Way more important is the support they receive from LGBTQIA+ activists such as Omar and Ndiilo from Namibia Equal Rights Movement (check out the article based on my interview with Omar) who organize street protests in favor of the rainbow family or their attorney Uno Katjipuka-Sibolile who would really know what she does.
Talking about the support by a strong social network and an attorney Philip emphasizes the meaning of class in Namibia. He admits that he is in a privileged position as a German speaking white Namibian compared to people without such a socio-economic backing. In all matters there still would be big inequalities. Guillermo and Philip can afford a lawyer and fight in several court cases. Something many (queer) Namibians cannot.
“Die ganze Klassendynamik ist extrem wichtig in dem ganzen Zusammenhang.” (Philip)
(The whole class dynamic is extremely important in this whole context.)
“Then we can’t stay”
I am also asking Philip what he thinks would be results of positive or negative convicts in the court cases for the family personal and for the queer community of Namibia in general. In the cases of the children Philip sees a precedent case in acknowledging children born through surrogacy to same-sex relationships in Namibia. Many precedent cases could influence a rethinking of Namibian law, too. Family could get a wider definition. If the High Court decides against the children’s citizenships the cases would be taken to the Supreme Court. However, Philip thinks a positive verdict could mean that the ministry is taking the case to Supreme Court as well.
Regarding Guillermo’s domicile case Philip mentions that there was a case in Supreme Court on domicile for a lesbian couple already in the beginning of the 2000s. Thus, the Supreme Court would need to revise its own judgement. Again, the judgement could be a precedent case because if Guillermo gets the domicile all non-Namibian same-sex spouses of Namibians should have the right to domicile.
If the Supreme Court judges against the Lühl-Delgado family they would need to wait what the verdict regarding recognizing same-sex marriages in Namibia says which is expected on 20th January 2022. Nevertheless, a negative judgement would mean that they cannot stay in the country, according to Philip. They could not afford financially but also emotionally to fight against and sue the government forever. Due to the Mexican citizenship of Guillermo and the children they have the perspective and opportunity to leave Namibia for Mexico. Another privilege they have, Philip adds.
The hearing of the domicle case in Supreme Court is on the 11th October 2021. Philip hopes for a verdict in the beginning of 2022 then.
The mental stress of uncertainty
Asking Philip if Corona affected the court cases he affirms. In the beginning of August 2021 the judge explained the postponing of the verdict on Yona’s citizenship explicitly on Corona. Due to the pandemic the court would have been slowed down in its work and would need more time. In 2020, the High Court was closed several months at all, according to Philip. Court cases would always take a really long time but Corona made it even worse. It also made things more complicated, e.g. travelling to South Africa for the surrogacy.
He also affirms my question if the waiting is mental stress. The future if they can stay in Namibia as a family is uncertain. They have been living as a couple or family in Namibia for ten years now. Together with others they built up the Department of Architecture of NUST (Namibia University of Science and Technology). Both are working on topics relating land and housing in urban areas. Guillermo worked at a research institute of the trade unions first where he already worked on housing. They work for and together with the Ministry of Urban and Rural Development. Thus, on the one hand both support actively a specific part of the government and on the other side another arm of the government makes life impossible for them showing that they are not welcome legally. It leaves them behind without any planning security… and I suppose also disappointment.
They hardly face challenges in daily life. The university or banks or other institutions acknowledge them as a family and Yona, Paula and Maya as Guillermo’s and Philip’s children. Just the state does not. There was also no option for Philip for paternal leave to care about the children since only women can leave work for a certain amount of time for their newborns. Another conservative and heteronormative thinking of Namibian law. Philip remembers that the first Labour Act of 1992 was more progressive than the changed version of 2007. While in 1992 sexual orientation was mentioned as one of the grounds on which people were not allowed to be discriminated at work it was removed from the law in 2007. Therefore, he cannot refer to the Labour Act anymore to demand parental leave.
Philip concludes that they already have been at the point when they were ready to leave the country because everything takes so long and is exhausting. He is not sure if they might come to this point again – dependent on the expected convicts in the next few months.