Applicant, a German citizen, is a long-term same-sex partner of a Namibian citizen. She applied to the Immigration Selection Board (“Board”) for a permanent residence permit under Section 26 of the Immigration Control Act, Act No. 7 of 1993. She applied for the permit twice, first in 1996 and then again in 1997. The Board rejected the application both times without any explanation.
Applicant appealed to the High Court, arguing that the Board’s decision violated Article 18 of the Namibian Constitution, which requires administrative bodies to act fairly and reasonably. Furthermore, she argued that the Board may have been biased in its decision because of the Applicant’s homosexual relationship. She stated that she and her partner would have married if same sex marriages were legal in Namibia. She speciﬁcally argued that the decision violated her constitutional rights to nondiscrimination (Article 10), privacy (Article 13(1)), and protection of the family (Article 14). The High Court set aside the decision of the Board, and directed the Board to issue her a residence permit.
The Board appealed the decision to the Supreme Court, arguing that Applicant’s sexual orientation did not influence the denial, but rather it was the fact that there were Namibian citizens who were qualified to fulfill her position and the Board had to prioritize the employment needs of Namibian citizens.
At issue in this case was: (1) whether the Board acted unjustly when it failed to provide reasons for its decision to reject the Applicant’s request for a permanent residency permit, (2) whether the Board’s decision was based on the Applicant’s sexual orientation and thus unconstitutional and discriminatory, and (3) whether the Board’s decision violated the Applicant’s right to privacy.
The Court reviewed the High Court’s decision and determined that the High Court found that, by failing to establish the policies and reasons for its decision, the Board did not observe one of the principles of administrative justice, namely the audi alteram partem rule (the right to know and respond to a levied charge). The Court noted that due to several lapses in filing deadlines, the timeline of this appeal had extended, creating additional undue stress for the Applicant. The Court ruled that it would not create additional stress for Applicant by extending this case further. The Court therefore ruled that the Board must redecide the case, take into consideration the audi alteram partem rule, and provide reasons for its decision.
Justice O’Linn added an international human rights argument to the Court’s decision. In the minority opinion, Justice O’Linn noted that Article 14 of the Constitution of Namibia does not expressly protect homosexual relationships as part of the natural family unit. Articles 16 and 18 of the African Charter on Human and Peoples’ Rights, and Article 23 of the International Covenant on Civil and Political Rights likewise do not unequivocally recognize homosexual relationships. There is no other legal ground for mandating the equal treatment of homosexuals and heterosexuals. Same-sex partners are thus legitimately denied the same protection that heterosexual partners receive (Muller v. President of the Republic of Namibia and Another,  (6) BCLR 655 [Nm S] applied). The failure to include lesbian relationships within various governmental obligations under Section 26(3)(g) of the Act thus does not amount to discrimination.
However, Justice O’Linn argued that although the Constitution of Namibia and international human rights treaties do not expressly recognize same-sex and heterosexual relationships as equal, the Immigration Selection Board is still obligated to provide reasons for rejecting residence permits to same-sex partners.