Some conservative traditionalists are fuming over High Court judge Justice Key Dingake's ruling last Monday that the Childrens’ Act Adoption provisions which allows for the adoption of children born out of wedlock without the consent of their biological fathers be declared unconstitutional. While the applicant, human rights activists and some members of the society welcomed the judgement with open hands saying it was in fact long overdue, some traditionalist and some members of the society cannot stomach the outcome of the case saying it goes against traditional tswana practices and undermined the good intentions of tswana culture.
Dingake had when delivering the judgement said that it is irrational to discriminate against unwed fathers.
Kgosi Michael Gaborone of Tlokweng, argued that though some may think the judgement was a case study it is entirely was wrong and was a clear indication that the country’s judicial system was a hopeless vehicle that is continuing to fail citizens of this country.
Kgosi Gaborone argued that culture clearly dictated that when one has not wed the mother of his child then he would not have any right or claim over the child. Though he made exceptions for men who in this case are taking responsibility and supporting their children he said in case of the mother getting married then he should cease the right to the child and give the man who married the child’s mother to play the father figure role to the child. This according to Kgosi Gaborone will not only afford the child a stable home to grow up in but will protect the integrity of the marriage of the child’s mother. “Some of these men are trouble makers and you will find out that they are only seeking certain rights to the child to spite the mother,” he said.
Gaborone argued that though some may think that these cultural values are outdated and prejudiced, they were in fact made to the benefit of the society. “ Imagine if a woman has more than one child with different men, how do you think it will affect her marriage if now each one of this men wants to be consulted and claim certain rights over their child in the presence of her husband. It wouldn’t look right I tell you,” said Gaborone.
Local men too, though generally happy with the judgement expressed mixed reactions over the judgement. When interviewed by this publication a lot of the youthful adults (25-40 years) said the judgement was timely and will protect their rights and that of their children. Their view was that women in most cases denied fathers the right to have a say in their children’s lives even when it meant in serious matters such as adoption. Most elders were however concerned with how this was going to impact on cultural family values.
Speaking after the judgement Geoffrey Khwarae, a biological father of a child born out of wedlock, who was challenging the Children’s Act , 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, non-discrimination and is also inhuman and degrading. 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.
Ndadi’s partner at Ndadi Law firm Phadza Molebatsi concurred with his colleague saying Khwarae’s case was of national interest and the current feedback is that the society need to be educated on the implications of the judgement. “ People are curious, from the questions and comments received from the public via different forums it is clear that they need to be educated about the issue,” said Molebatsi.
Botswana Network on Ethics, Law and HIV/AIDS (BONELA) LEGAL Advisor Keikantse Phele said that as a human rights organisation they took interest in Khwarae’s case because it was addressing children rights and parental rights. She it was commendable that the courts as the highest guardian of the child ensured that their rights were protected.
The customary law provisions that the defense had based their arguments on, during the case, according to Phele were outdated and not aligned to the constitution. "Culture is not static and should consistently change to suit the way of life of the people. Justice Dingake made excellent adjustments to maintain children’s rights,” said Phele.