As the nation focuses its attention on the national budget next week Monday, the Gaborone High Court would be passing judgment on a controversial constitutional case that challenges the Adoption Act and the best interest of a child.
Justice Key Dingake reserved the judgment on the case last year September as he said he needed time to reflect on it because the case was loaded and bordering on public interest.
The case is about a father who seeks to prevent his minor child from being adopted against his wishes. The father challenged the constitutionality of section 4(2)(d)(i) of the Adoption Act insofar as it does not require the consent of a biological father to a child born out of wedlock regardless of the child’s best interests. He asked that the Court declare the provision unconstitutional and issue an order that his child may not be adopted without his consent.
None of the respondents opposed the application. The Attorney-General was, however, asked by the Court to make submissions on the constitutional challenge.
In oral argument in court, the applicant’s attorney, Uyapo Ndadi of Ndadi lawfirm, illustrated to the Court that on the facts before it, the applicant had played a consistent role in the growth, wellbeing and care of his child and therefore justified his demands.
Ndadi further submitted that section 4(2)(d)(i) of the Adoption Act discriminates against the applicant on the basis of his sex and his marital status. He argued further that the operation of the Act subjects the father to treatment that is inhuman and degrading and infringes his right to a fair hearing. These limits to the father’s rights, he argued, are constitutionally unjustifiable because the provision does not advance the child’s best interests.
The Attorney General counsel, Moloise argued that the Adoption Act does not discriminate against fathers on the basis of their sex. At most, he said, the Act discriminates against unmarried persons as opposed to married persons, and marital status is not a ground of discrimination. He further argued that any discrimination was nevertheless constitutionally justified and reasonable taking into account the historical origins of the adoption law.
These origins, he argued, are embedded in the common law and customary law which provide that parental power is acquired through lawful wedlock. The institution of marriage, he argued, is a phenomenon deeply revered and entrenched in Botswana culture. The notion of the “legitimacy” of the child is an intimate part of this culture, he submitted, the preservation of which justifies the discrimination against fathers.
Moloise added that the Adoption Act may be insulting towards unmarried fathers but is by no means inhuman or degrading. In addition, he argued, the right to a fair hearing extends only to criminal trials and is not a right enjoyed in the civil context. His contention was that while the 2009 Children’s Act extends the role of biological fathers in the lives of their children born out of wedlock, it does not confer on fathers the right to consent to their children’s adoption.
In reply, Ndadi emphasised to the Court that the Children’s Act recognizes children as children, irrespective of their parents’ marital status. The Children’s Act, he argued, must be interpreted in line with the Constitution. Moreover, in its own terms, the Children’s Act takes precedence over other laws that conflict with it, which should be understood to include the provisions of the older Adoption Act from 1952 that does not accommodate the child’s best interests.
In the course of the hearing, Dingake questioned both Ndadi and Moloise on their views of the traditional referent for children born out of wedlock as “illegitimate” children. Ndadi said that while the term was less offensive than others, an express effort had been made to avoid its use as it is offensive to the dignity of the child. In Moloise’s view, while the term “illegitimate child” was perhaps politically incorrect, it was “tolerable for legal purposes.”
While there is no hard-and-fast rule in politics, former Molepolole North Member of Parliament, Mohamed Khan says populism acts in the body politic have forced him to quit active partisan politics. He brands this ancient ascription of politics as fake and says it lowers the moral compass of the society.
Khan who finally tasted political victory in the 2014 elections after numerous failed attempts, has decided to leave the ‘dirty game’, and on his way out he characteristically lashed at the current political leaders; including his own party president, Advocate Duma Boko. “I arrived at this decision because I have noticed that there are no genuine politics and politicians. The current leaders, Boko and President Dr Mokgweetsi Masisi are fake politicians who are just practicing populist politics to feed their egos,” he said.
Former Botswana Democratic Party (BDP) parliamentary hopeful, Lawrence Ookeditse has rejected the idea of taking up a crucial role in the Botswana Patriotic Front (BPF) Central Committee following his arrival in the party this week. According to sources close to development, BPF power brokers are coaxing Ookeditse to take up the secretary general position, left vacant by death of Roseline Panzirah-Matshome in November 2020.
Ookeditse’s arrival at BPF is projected to cause conflicts, as some believe they are being overlooked, in favour of a new arrival. The former ruling party strategist has however ruled out the possibility of serving in the party central committee as secretary general, and committed that he will turn down the overture if availed to him by party leadership.
Ookeditse, nevertheless, has indicated that if offered another opportunity to serve in a different capacity, he will gladly accept. “I still need to learn the party, how it functions and all its structures; I must be guided, but given any responsibility I will serve the party as long as it is not the SG position.”
“I joined the BPF with a clear conscious, to further advance my voice and the interests of the constituents of Nata/Gweta which I believe the BDP is no longer capable to execute.” Ookeditse speaks of abject poverty in his constituency and prevalent unemployment among the youth, issues he hopes his new home will prioritise.
He dismissed further allegations that he resigned from the BDP because he was not rewarded for his efforts towards the 2019 general elections. After losing in the BDP primaries in 2018, Ookeditse said, he was offered a job in government but declined to take the post due to his political ambitions. Ookeditse stated that he rejected the offer because, working for government clashed with his political journey.
He insists there are many activists who are more deserving than him; he could have chosen to take up the opportunity that was before him but his conscious for the entire populace’s wellbeing held him back. Ookeditse said there many people in the party who also contributed towards party success, asserting that he only left the BDP because he was concerned about the greater good of the majority not individualism purposes.
According to observers, Ookeditse has been enticed by the prospects of contesting Nata/Gweta constituency in the 2024 general election, following the party’s impressive performance in the last general elections. Nata/Gweta which is a traditional BDP stronghold saw its numbers shrinking to a margin of 1568. BDP represented by Polson Majaga garnered 4754, while BPF which had fielded Joe Linga received 3186 with UDC coming a distant with 1442 votes.
There are reports that Linga will pave way for Ookeditse to contest the constituency in 2024 and the latter is upbeat about the prospects of being elected to parliament. Despite Ookeditse dismissing reports that he is eying the secretary general position, insiders argue that the position will be availed to him nevertheless.
Alternative favourite for the position is Vuyo Notha who is the party Deputy Secretary General. Notha has since assumed duties of the secretariat office on the interim basis. BPF politburo is expected to meet on 25th of January 2020, where the vacancy will be filled.
Botswana Democratic Party (BDP) big wigs have decided to cancel a retreat with the party legislators this weekend owing to increasing numbers of Covid-19 cases. The meeting was billed for this weekend at a place that was to be confirmed, however a communique from the party this past Tuesday reversed the highly anticipated meeting.
“We received a communication this week that the meeting will not go as planned because of rapid spread of Covid-19,” one member of the party Central Committee confirmed to this publication. The gathering was to follow the first of its kind held late last year at party Treasurer Satar Dada’s place.