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.”
The P250 million National Petroleum Fund (NPF) saga that has been before court since 2017 seems to be losing its momentum with a high possibility of it being thrown out as defence lawyers unmask incompetency on the part of the Directorate of Public Prosecution (DPP).
The Gaborone High Court this week ruled that the decision by the State to prosecute Justice Zein Kebonang and his twin brother, Sadique Kebonang has been reviewed and set aside. The two brothers have now been cleared of the charges that where laid against them three years ago.
The United States (US) will on the 3rd of November 2020 chose between incumbent Donald Trump of the Republicans and former Vice President Joe Biden of the Democrats amid the coronavirus pandemics, which has affected how voting is conducted in the world’s biggest economy.
Trump (74) seeks re-election after trouncing Hillary Clinton in 2016, while Biden (77) is going for his first shot as Democratic nominee after previous unsuccessful spells.
US Presidents mostly succeed in their re-election bid, but there have been nine individuals who failed to garner a second term mandate, the latest being George W H. Bush, a Republican who served as the 41st US President between 1989 and 1993.
Dr Mark Rozell, a Dean of the School of Policy and Government at George Mason University in Arlington, Virginia describes the complex US electoral system that will deliver the winner at the 3rd November elections.
“The founders of our Republic de-centralised authority significantly in creating our constitutional system, which means that they gave an enormous amount of independent power and authority to State and local governments,” Dr Rozell told international media on Elections 2020 Virtual Reporting Tour.
Unlike parliamentary democracies, like Botswana the United States does not have all of the national government elected in one year. They do not have what is commonly called mandate elections where the entire federal government is elected all in one election cycle giving a “mandate” to a particular political party to lead, and instead US have what are called staggered elections, elections over time.
The two house Congress, members of the House of Representatives have two-year long terms of office. Every two years the entire House of Representatives is up for re-election, but senators serve for six years and one third of the Senate is elected every two years.
For this election cycle, US citizens will be electing the President and Vice
President, the entire House of Representatives and one third of the open or contested seats in the Senate, whereas two thirds are still fulfilling the remainder of their terms beyond this year.
An important facet of US electoral system to understand given the federalism nature of the republic, the US elect presidents State by State, therefore they do not have a national popular vote for the presidency.
“We have a national popular vote total that says that Hillary Clinton got three million more votes than Donald Trump or in Year 2000 that Al Gore got a half million more votes than George W. Bush, but we have what is called a State by State winner takes all system where each State is assigned a number of electors to our Electoral College and the candidate who wins the popular vote within each State takes 100 percent of the electors to the Electoral College,” explained Dr Rozell.
“And that is why mathematically, it is possible for someone to win the popular vote but lose the presidency.”
Dr Rozell indicated that in 2016, Hillary Clinton won very large popular majorities in some big population States like California, but the system allows a candidate to only have to win a State by one vote to win a 100 percent of its electors, the margin does not matter.
“Donald Trump won many more States by smaller margins, hence he got an Electoral College majority.”
Another interesting features by the way of US constitutional system, according to Dr Rozell, but extremely rare, is what is called the faithless elector.
“That’s the elector to the Electoral College who says, ‘I’m not going to vote the popular vote in my State, I think my State made a bad decision and I’m going to break with the popular vote,’’ Dr Rozell said.
“That’s constitutionally a very complicated matter in our federalism system because although the federal constitution says electors may exercise discretion, most States have passed State laws making it illegal for any elector to the Electoral College to break faith with the popular vote of that State, it is a criminal act that can be penalized if one is to do that. And we just had an important Supreme Court case that upheld the right of the states to impose and to enforce this restriction”
There are 538 electors at the Electoral College, 270 is the magic number, the candidate who gets 270 or more becomes President of the United States.
If however there are more candidates, and this happens extremely rarely, and a third candidate got some electors to the Electoral College denying the two major party candidates, either one getting a majority, nobody gets 270 or more, then the election goes to the House of Representatives and the House of Representatives votes among the top three vote getters as to who should be the next President.
“You’d have to go back to the early 19th century to have such a scenario, and that’s not going to happen this year unless there is a statistical oddity, which would be a perfect statistical tie of 269 to 269 which could happen but you can just imagine how incredibly unlikely that is,” stated Dr Rozell.
BLUE STATES vs RED STATES
Since the 2000 United States presidential election, red states and blue states have referred to states of the United States whose voters predominantly choose either the Republican Party (red) or Democratic Party (blue) presidential candidates.
Many states have populations that are so heavily concentrated in the Democratic party or the Republican party that there is really no competition in those states.
California is a heavily Democratic State, so is New York and Maryland. It is given that Joe Biden will win those states. Meanwhile Texas, Florida and Alabama are republicans. So, the candidates will spent no time campaigning in those states because it is already a given.
However there are swing states, where there is a competition between about five and 10 states total in each election cycle that make a difference, and that is where the candidates end up spending almost all of their time.
“So it ends up making a national contest for the presidency actually look like several state-wide contests with candidates spending a lot of time talking about State and local issues in those parts of the country,” said Dr Rozell.
High Commissioner of the Federal Government of Nigeria to Botswana, His Excellency Umar Zainab Salisu, has challenged President Dr Mokgweetsi Masisi to move swiftly and lobby Africa’s richest man, Nigerian Billionaire, Aliko Dangote to invest in Botswana.
Speaking during a meeting with President Masisi at Office of President on Thursday Zainab Salisu said Dangote has expressed massive interest in setting up billion dollar industries in Botswana. “We have a lot of investors who wish to come and invest in Botswana , when we look at Botswana we don’t see Botswana itself , but we are lured by its geographic location , being in the centre of Southern Africa presents a good opportunity for strategic penetration into other markets of the region,” said Salisu.