High court Judge Justice Key Dingake on Monday ordered that the Children’s’ Act Adoption provisions which allowed for the adoption of children born out of wedlock without the consent of their biological fathers be declared unconstitutional.
Justice Key Dingake made the pronouncement when delivering a judgement in a case in which Geoffrey Khwarae was challenging the Children’s Act. Khwarae, a biological father of a child born out of wedlock, argued that the Act violated his constitutional rights and was not in the child’s best interests. He contended that the Act is unconstitutional as it infringes on his right to equality, nondiscrimination and is also inhuman and degrading.
Judge Dingake concurred with him, saying that it is irrational to discriminate against unwed fathers. The government had argued that the Act was constitutionally justified.
Responding to the judgement, Khwarae said he is pleased with the ruling. He said he has never believed that a man can raise another man's child if the biological father has taken all efforts to raise such a child. “As a man, I wouldn’t feel easy when my child was being raised by another man for me,” said Khwarae.
In a statement made after the judgement, Uyapo Ndadi, who had represented Khwarae during the proceedings, said Khwarae’s victory should be shared by all men who have, or will have children outside the realms of marriage. “Most importantly it is victory for all children born out of wedlock because the court has emphasised that their interests reign supreme over their mothers’ interests,” said Ndadi.
According to Ndadi, the case is monumental and timely as it will also impact on people’s lives. “All he wanted was his child but what he got is his child and a change of law to benefit similarly situated men and children,” he said.