Home affairs minister Frans Kapofi said the ministry cannot issue emergency travel documents to twin daughters of fathers Phillip Lühl and Guillermo Delgado, born through surrogacy in South Africa, when legal issues pertaining to the children’s paternity are yet to be resolved.

Kapofi is being sued in his capacity as minister of home affairs for refusing to grant emergency travel documents to infants Paula and Maya Delgado Lühl born on 13 March 2021 in South Africa, which would enable them to travel to Namibia in the company of Lühl, their Namibian father. 

In a letter dated 23 February 2021, the fathers, through their lawyers, proposed to Kapofi to issue their daughters with emergency travel documents to avoid them being stuck in South Africa pending judgement in the first case, in which Lühl is suing the minister to have his and Delgado’s two-year-old son, Yona, declared a Namibian citizen by descent.

In turn, the couple promised not to use the emergency travel documents in support of any claim for Namibian citizenship of the twins. The decision in this case is expected on 4 August.

“I must be satisfied that Paula and Maya are children of a Namibian parent before the certificate of citizenship by descent and or travel documents can be issued. Again, this has not been applied for,” explained Kapofi in his affidavit.

The minister further said the parents should have applied for citizenship for the children and allowed him the opportunity to make his decision. However, there is currently no application to that effect and thus there is no case to be considered by the court as he has not made any decision in both cases. 

“Furthermore, it is respectfully not within the purview of the court to usurp my jurisdiction by ordering me to issue emergency travel documents especially where there are legal issues pertaining to paternity that are in dispute and still need to be resolved,” noted Kapofi.

During oral arguments in the High Court before Judge Thomas Masuku yesterday, government attorney Jabulani Ncube argued that the applicant’s application is incompetent on the basis it seeks a final interdict without seeking to review the minister’s decision on the merits. The applicant has not proven that he is biologically related to the minor children.

“It would be in the best interests for not only the minor but for the applicant as well that the minor be subjected to a paternity test to remove any shadow of doubt pertaining to paternity. This would enable the child to be brought within the dictates of Article 4(2) of the Namibian constitution and gain citizenship by descent,” argued Ncube.

He emphasised that despite Namibian laws differing from South African laws regarding sexual orientation, it has no bearing on the minister’s decision as jurisdictional laws must be followed.

Lühl’s lawyer, Uno Katjipuka-Sibolile, argued that the minister’s refusal to issue travel documents to the infants violates a number of rights entrenched in the Namibian constitution and international instruments.

“The respondent did not consider the children at all, let alone consider what is in their best interests. It stands to reason that it never occurred to the respondent to consider the children, thus betraying the callousness of his conduct as well as his   ignorance   of   the international obligations the country has assumed,” said Katjipuka-Sibolile.

She further questioned why the minister would deny Lühl the rights enjoyed by heterosexual couples if he is disputing that he has no issues with his sexual orientation.

“Just because surrogacy is not provided for within Namibian laws, it does not prohibit a Namibian citizen from doing it, as long as it done within the confines of our laws and a valid birth certificate is issued,” said Katjipuka-Sibolile.

She added that the court should look at the best interests of the children at arriving at its decision.

Before the court hearing, a large number of members of the public, pressure groups and sympathisers handed over a petition to the home affairs ministry, demanding that the minister reconsider his decision and issue the twins travel documents so they can travel to Namibia, and Namibian citizenship by descent.

The petition was received by the ministry’s acting executive director Rachel Nghiilwamo.

The group called on ombudsman John Walters to intervene in the matter.

Judge Masuku is expected to give a ruling in the matter on 19 April.

– mamakali@nepc.com.na