by Faith Sankwasa and Tirivangani Masawi
September 24, 2009 / informante.web.na
HIGH Court Judge, Justice Sylvester Mainga, has ordered the state to allow a German couple to adopt a Namibian child who is currently living under their care.
The couple, Jen Holger and Bianca Detmold were seeking a court interdict in the adoption of Sonia Hammerslacht but the state argued that they were disentitled to adopt as they had not yet acquired Namibian citizenship.
In their application, the Detmolds cited the Ministry of Health and Social Services, Ministry of Women’s Affairs and Child Welfare (now Gender Equality and Child Welfare) and the Commissioner of Child Welfare for the Okahandja District as the respondents.
Government attorneys were questioning the legality of the adoption of Namibian Children by foreigners as it is not catered for in the country’s Constitution.
Presiding over the case heard yesterday at the Windhoek High Court, Justice Mainga ordered the state to hand over the birth certificate and adoption order as required by the applicants.
The State argued that, despite the agreement between the couple and the child’s biological mother, the law does not allow Namibian children to be adopted by foreigners.
The State quoted Article 15 (1) of the Constitution which says Namibian children should be cared for by their biological mothers and that the law does not specify on the adoption of children by foreigners therefore provision should be made for Parliament to deliberate on the matter.
According to the Namibian law, the couple should be permanent residents in the country for them to be able to adopt the child.
However, according to Justice Mainga’s order, the adoption should be urgently approved and that failure to comply with the order will not be condoned.
Permanent Secretary for Women Affairs and Child Welfare, Errka Usiku, who was cited as the respondent had also filed an affidavit objecting to the adoption but Justice Mainga’s order nullified the affidavit.
In addition, Usiku argued that they could not make the concession as the matter could be referred to the Children’s Court for consideration if Parliament removes the absolute prohibition upon non-Namibians as parents.