P L v Minister of Home Affairs and Immigration (HC-MD-CIV MOT-GEN 473 of 2019) [2021] NAHCMD 481 (13 October 2021)

Before court for determination is the eligibility of a child born through
surrogacy in South Africa to be accorded Namibian citizenship by descent. The applicant
is a Namibian male involved in a same sex marriage solemnized in South Africa. Together
with his partner, they obtained an order from the Western Cape High Court endorsing a
surrogacy arrangement with a South African woman. After birth, the child was issued with
a South African birth certificate, in which the applicant and his partner were endorsed as
the child's parents.

The applicant brought the child to Namibia, and in due course applied for Namibian
citizenship by descent, but the respondent required of him to first provide proof that he
indeed is the biological father of the child. This was premised on the respondents' position
that a possibility exists that the gamete that fertilised the egg of the surrogate mother,
may be that of the applicant's spouse, who is not a Namibian citizen. This position is
informed by the fact that the applicant is in a same sex marriage.

Dissatisfied by this position, the applicant approached this court for relief. He is of the
view that the position taken by the Minister is discriminatory and is not in the best interests
of the child. The Minister took it further by lodging a counter-application, seeking an order
compelling the applicant and his child to undergo a DNA test to determine the paternity
of the minor child. The court found as follows:

Held: The provisions of Article 4(2) of the Constitution mean that persons seeking to be
granted citizenship by descent should be the children of the parent, either a farther or a
mother who at the child 's birth is a Namibian citizen. The minor child in question meets
this requirement.

Held that: It is not disputed that the applicant is a Namibian citizen and is registered on
the child's birth certificate as a parent to the minor child. The applicant thus meets the
requirements of the legislative scheme in Namibia.

Held further that: There is no reference in the Constitution to biology or genetics in matters
pertaining to citizenship by descent. If the respondent's stance is accepted, children
adopted outside Namibia by Namibian citizens would not be entitled to citizenship by
descent, which would be anomalous.

Held: that the Constitution requires the father or mother of the child to be a Namibian
citizen, this does not exclude a parent in a generic sense.

Held that: The Court must give a purposive interpretation to the Constitution, one which
will be elastic, flexible and adaptive to the changing norms and practices in society.
Held further that: Namibian courts recognise judgments and orders issued by foreign
courts and more particularly South African, because of historical ties. The authenticity of
the court order by the South African court has not been challenged, and in the
circumstances, it should be given effect to as it does not appear to violate Namibia's
public policy or Namibian laws.

Held: That it is in the best interests of the minor child to live with his parents and take up
citizenship of the applicant by descent. It is improper for the respondent to create a
dispute within the applicants' family regarding issues of paternity when such dispute does
not exist.

Held that: The scheme of the Citizenship Act, read in tandem with the Constitution, does
not require a biological link between the parent and the child. If that were the position,
children adopted by Namibian citizens outside the country may be refused citizenship by
descent.

Held further that: the Minister's reliance on the provisions of the Child Care Protection
Act, 2015, are misplaced because they are not designed to deal with issues of acquisition
of citizenship.

Held: that Namibia, by virtue of Article 144 of the Namibian Constitution, is required to
give effect to international agreements to which she is a signatory or which she has
ratified. The court, when dealing with such matters, cannot close its eyes to the
international instruments to which Namibia is a State party. Thus, effect should be given
to the UN Convention on the Rights of the Child and the African Charter on the Rights
and Welfare of the Child in the current matter.

Held that: The had the child having been born pursuant to a surrogacy agreement to a
hetero-sexual couple, the respondent would not have required the applicant to undergo
DNA tests to prove the paternity of the child.

Held further that: Article 10 of the Constitution deals with the rights to equality and nondiscrimination.
In this instance the respondents' actions are discriminatory and cannot be
allowed to prevail.

The court found that the respondent's counter application was actuated or informed by
discrimination and should fail. The court held that the minor child was eligible to be
granted Namibian citizenship by descent. The court accordingly ordered the Minister to
grant citizenship by descent to the minor child.

Constitutional Law - Citizenship by descent - Article 4(2) - Eligibility of a child
born through surrogacy to be issued citizenship by descent - The parent of the child
should be a Namibian citizen at the time of the child's birth - Purposive interpretation of the Namibian Constitution to be made - Article 144 Namibian Constitution - Binding nature of international agreements to which Namibia is a State Party - inapplicability of
the Child Care Protection Act, 2015 to issues of citizenship.