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High Court sides with unmarried fathers on child adoption

Judge Dingake rules Adoption Act unconstitutional

On Monday the High Court delivered judgment in a constitutional challenge to the Adoption of Children Act. The Act permits a child who is born out of wedlock to be adopted by a third party without the consent of the child’s biological father.

Geoffrey Khwarae and his attorney, Uyapo Ndadi are of the view that Judge Dingake’s ruling which declared Adoption of Children Act unconstitutional is a victory for all men. Ndadi and his clients wanted the Court to determine whether Botswana’s law protects the interests of children, who are ultimately the ones who bear the burden in such a case.

Ndadi, a celebrated human rights lawyer, is pleased with the outcome of the case. The judgment set aside the Adoption of Children as it goes against the country’s constitution. Unlike many other lawyers, Ndadi has developed a predilection for human rights cases involving families.


Before practicing as an attorney, Ndadi was at the helm of Botswana Network on Ethics, Laws and HIV/AIDS (BONELA), as its Executive Director an organization that promotes a just and inclusive environment to prevent HIV infection and provide a greater quality of life for people affected by HIV and AIDS making sure that people living with HIV/AIDS’s rights are protected.


Khwarae had approached Ndadi to act on his behalf in his endeavor to prevent his minor child from being adopted against his wishes. Through his lawyers, he challenged the constitutionality of section 4(2) (d)(i) of the Adoption Act in so far 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.


 “It is not a one man victory, it is a victory which shall be celebrated by all men,” Khwarae told Weekend Post shortly after the High Court ruling. He observed that it is common that women tend to bully man when it comes to child custody. “Women usually have the children adopted without the consent of their biological fathers,” he stated.  


Meanwhile, Ndadi is convinced that the judgment is monumental and timely, “Not only will this case enhance our jurisprudence, it will also impact on people’s lives,” he said.


 “At the heart of any adoption case henceforth, the primary factor will be what is in the child’s best interest.”


This is not the first time that Ndadi challenged the constitutionality of an Act of Parliament, in 2013, the then BONELA Director argued against the new Public Health Act, which forced people to reveal their HIV/AIDS status to close relatives and their sexual partners, failing which a person is deemed to have committed an offense punishable by law.


Indeed, it was not just victory for Khwarae and Ndadi after Judge Dingake delivered a verdict in their favour, to a larger extent all men in Botswana breathed a sigh of relief. The same euphoria was experienced from the public and the organizations which had have similar view on the rights of the fathers and children.


“The judgment brings Botswana’s adoption laws in line with more progressive Children’s Act of 2009 that places the child’s best interest at the heart of issues concerning the child,” said Cindy Kelemi, the incumbent Director of BONELA.  


All along, Khwarae and his lawyer were convinced that they had a strong case which could set aside part of the Adoption of Children Act.


Khwarae is irked by the section which does not require his consent in the event of adoption of his daughter because he was not married to the mother of the daughter. His lawyer, Ndadi put up a solid argument that the Act denied Khwarae his freedom from discrimination, freedom from inhumane and degrading treatment, “Tomorrow it could happen to another man, that is why we must cherish this judgment,” said Khwarae, “We are still waiting to see if the state will appeal the judgment or not.”


On the losing side, Moloise from the Attorney General’s Chambers had 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.


Botswana Network on Ethics, Law and HIV/AIDS (BONELA) and other civic organisations are advocating for law reform in child adoption to ensure that it is aligned with the principles enshrined in the Children’s Act of 2009.
 
“International and regional human rights law requires that the child’s best interests be of paramount importance in all issues concerning the child. In cases where fathers have played a positive and active part in their child’s life, it is generally not in the child’s best interests to terminate that relationship by adoption against the father’s wishes,” says Anneke Meerkotter, Litigation Director at the Southern Africa Litigation Centre (SALC), which is providing assistance on the case.

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Seretse, Kgosi may walk free

30th October 2020
BAKANG SERETSE

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.

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Understanding the US Electoral College and key election issues 

28th October 2020
Mark J Rozell

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.

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Masisi to make things right with Dangote

26th October 2020

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.

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