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Home » News » General » Teenager takes Gov’t to court over nationality

Teenager takes Gov’t to court over nationality

Publishing Date : 18 September, 2017

Author : UTLWANANG GASENNELWE

Government of Botswana, through Ministry of Nationality, Immigration and Gender Affairs has refused to issue a birth certificate of a minor child (names withheld) at the request of her father.


The Permanent Secretary in the Ministry of Nationality, Immigration and Gender Affairs controls and supervises issuing of birth certificates. The denial by the government to issue the minor the birth certificate has culminated in a landmark court case where the father, Tshepo Mpatane, will face off against government at the High court. The application was registered by esteemed human rights attorney and partner at Thabiso Tafila Attorneys, Phazha Molebatsi, on behalf of the minor child.

The long-winded case has the potential to change the law with regard to fathers so that they play a noteworthy role in their children’s lives and owning up, in the event of absent mothers, like it is in the matter. In the court papers, seen by WeekendPost, Molebatsi in essence sought an order to be granted directing the government to issue the birth certificate. The well-regarded Counsel, who previously served at Ndadi Law Firm as well as Botswana Network on Ethics, Law and HIV/AIDS (BONELA) specifically sought “that an order be granted directing the government to cause to immediately be issued a birth certificate for the minor child”.


Molebatsi who is voluntarily acting on behalf of the father of the minor on pro bono, said this is considered a violation of the minor’s right to nationality from birth - contrary to section 11 of the Children’s Act. Now a partner at Thabiso Tafila Attorneys, the progressive lawyer also stated that an order be granted directing that the government develop a procedure for single parents and in particular single fathers in a similar situation to be able to register the births of their children.


In denying to issue a birth certificate in respect of the minor at the request of her biological father, whom they even share a surname, the government is said to have discriminated against him on the basis of his sex as contrary to sections 3 and 15 of the Botswana constitution.
“This is on account of section 6(2) of the Births and Deaths Registration Act which makes provision for a single unwed father in a similar position. As a result of this provision I was unable to register the birth of my child, as government officials are unable to determine the procedure to be followed to assist with the registration,” the biological father of the child said in his affidavit.


Mpatane also mentioned that the birth certificate should register his child as a Motswana by virtue of his nationality as a Motswana. “The refusal by government to issue a birth certificate to my child not only deprives her of her rights as a citizen but also her rights as a Motswana child,” he highlighted in the court papers. As a background in the matter, Mpatane said sometime around January 1999, he entered into a romantic relationship with a certain Ms Nomsa Mahlanga, a national of Zimbabwe. At the time he says he was on a 2 months trip in Selibe Phikwe where he met and fell in love with Nomsa who was also residing in the town and only knew her as “Dineo” and therefore did not have any reason to believe that she was not a citizen of Botswana. It is understood that the father later moved to Kasane.


“Unbeknown to me, the minor who is my biological daughter had been conceived during the time of my relationship with Ms Nomsa Mahlanga before I relocated to Kasane. It was sometime in April 2001, when Ms Nomsa Mhlanga appeared at my home in Francistown and abandoned the minor child on my doorstep that I first learnt of and met my daughter,” he narrated in court papers. He explained that he has since raised the minor child as his daughter and conducted a paternity test as suggested by his lawyer Molebatsi, which he did and proved that it is his child.


“I have since that time been raising her as my daughter. I have had to give her the name she currently uses as her mother did not tell me her name, birth date, place of birth or any information necessary to facilitate her birth registration.” The father of the minor said in the court papers that he attempted without success since 2001 to register the birth of his daughter. One of the barriers to the successful registration of his daughter’s birth he said was the request by government authorities for the birth details such as place of birth and date of birth.


“However, not having being present at the time; and not being in possession of that information and not having any means of contacting my child’s mother meant that I was unable to provide the requested information. I have approached several government agents including nurses, social workers, teachers and the police. Despite explaining my inability to provide these details, I have not been assisted to register the birth of my daughter and she remained without any documents.” He believes that if he was a single mother in the same position, there would have been more assistance and understanding forthcoming from government officials.


The minor’s father also stated that she has also been deprived full rights that are enjoyed by other citizens and registered children. He added that the child has had to use an affidavit to access free education as well as for her access to health services, even though she would at times be denied vaccines that any child would get free from government. He said the child could not cross the border with him as well. According to Mpatane, just recently he had to seek his attorney Molebatsi’s intervention to ensure the child registers for form 3 examinations as she was required to produce a birth certificate to register or she would not be registered for the exams.


He explained: “I have always assumed full responsibility to care and provide for my daughter from the day she was left with me, to the present day. This I do willingly because of the love I have as a parent for my daughter, thus my daughter has no protection of the law to ensure that she continues to enjoy my support. She has no legally recognized name and has been deprived nationality as a Motswana, and many other rights that other children enjoy.”

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