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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ENVIRONMENT ISSUES: Masisi asks Virginia for help
President Mokgweetsi Masisi says the issue of sustainable natural resources management has always been an important part of Botswana’s national development agenda.
Masisi was speaking this week on the occasion of a public lecture at Virginia Polytechnic, under theme, “Merging Conservation, Democracy and Sustainable Development in Botswana.”
Botswana, according to Masisi, holds the view that the environment is fragile and as such, must be managed and given the utmost protection to enable the achievement of Sustainable Development Goals (SDGs).
“It is necessary that we engage one another in the interchange of ideas, perspectives, visualizations of social futures, and considerations of possible strategies and courses of action for sustainable development,” said Masisi.
On the other hand, dialogue, in the form of rigorous democratic discourse among stakeholders presents another basis for reconfiguring how people act on their environments, with a view to conserving its resources that “we require to meet our socio-economic development needs on a sustainable basis,” Masisi told attendees at the public lecture.
He said government has a keen interest in understanding the epidemiology and ecology of diseases of both domestic and wild animals. “It is our national interest to forestall the dire consequences of animal diseases on our communities livelihoods.”
President Masisi hoped that both Botswana and Virginia could help each other in curbing contagious diseases of wildlife.
“We believe that Virginia Tech can reasonably share their experiences, research insights and advances in veterinary sciences and medicines, to help us build capacity for knowledge creation and improve efforts of managing and containing contagious diseases of wildlife. The ground is fertile for entering into such a mutually beneficial partnership.”
When explaining environmental issues further, Masisi said efforts of conservation and sustainable development might at times be hampered by the emergence and recurrence of diseases when pathogens mutate and take host of more than one species.
“Water pollution also kills aquatic life, such as fish, which is one of humanity’s much deserved sources of food. In this regard, One Health Approach imposes ecological responsibility upon all of us to care for the environment and the bio-diversity therein.”
He said the production and use of animal vaccines is an important space and tool for conservation, particularly to deal with trans-border animal diseases.
“In Botswana, our 43-year-old national premier pharmaceutical institution called Botswana Vaccine Institute has played its role well. Through its successful production of highly efficacious Foot and Mouth vaccines, the country is able to contain this disease as well as supply vaccines to other countries in the sub-region.:
He has however declared that there is need for more help, saying “We need more capacitation to deal with and contain other types of microbial that affect both animals and human health.”
Masisi saddened by deaths of elephant attacks
President Mokgweetsi Masisi has expressed a strong worry over elephants killing people in Botswana. When speaking in Virginia this week, Masisi said it is unfortunate that Batswana have paid a price with their own blood through being attacked by elephants.
“Communities also suffer unimaginable economic losses yearly when their crops are eaten by the elephants. In spite of such incidents of human-elephant conflict, our people embrace living together with the animals. They fully understand wildlife conservation and its economic benefits in tourism.”
In 2018, Nthobogang Samokwase’s father was attacked by an elephant when travelling from the fields, where he stayed during the cropping season.
It was reported that the man couldn’t run because of his age. He was found trampled by the elephant and was pronounced dead upon arrival at the hospital.
In the same year, in Maun, a 57-year-old British woman was attacked by an elephant at Boro and died upon arrival at the hospital. The woman was with her Motswana partner, and were walking dogs in the evening.
Last month, a Durban woman named Carly Marshall survived an elephant attack while on holiday in the bush in Botswana. She was stabbed by one of the elephant’s tucks through the chest and was left with bruises. Marshall also suffered several fractured ribs from the ordeal.
President Masisi Botswana has the largest population of African elephants in the world, totaling more than 130 000. “This has been possible due to progressive conservation policies, partnerships with the communities, and investment in wildlife management programmes.”
In order to benefit further from wildlife, Masisi indicated that government has re-introduced controlled hunting in 2019 after a four-year pause. “The re-introduction of hunting was done in an open, transparent and democratic way, giving the communities an opportunity to air their views. The funds from the sale of hunting quota goes towards community development and elephant conservation.”
He stressed that for conservation to succeed, the local people must be involved and derive benefits from the natural resources within their localities.
“There must be open and transparent consultations which involve all sectors of the society. It is against this backdrop that as a country, we lead the continent on merging conservation, democracy and sustainable development.”
Masisi stated that Botswana is open to collaborative opportunities, “particularly with identifiable partners such as Virginia Tech, in other essential areas such as conservation, and the study of the interplay among the ecology of diseases of wild animals and plants, and their effects on human health and socio-economic development.”
Gov’t commit to injecting more funds in fighting HIV
Minister for State President Kabo Morwaeng says government will continue to make resources available in terms of financial allocations and human capital to ensure that Botswana achieves the ideal of eradicating HIV and AIDS as a public health threat by 2030.
Morwaeng was speaking this morning in Gaborone at the High-Level Advocacy event to accelerate HIV Prevention in Botswana. He said the National AIDS and Health Promotion Agency (NAPHA), in partnership with UNAIDS, UN agencies, the Global Fund and PEPFAR, have started a process of developing transition readiness plan for sustainability of HIV prevention and treatment programmes.
“It is important for us, as a country that has had a fair share of donor support in the response to an epidemic such as HIV and AIDS, to look beyond the period when the level of assistance would have reduced, or ceased, thus calling for domestic financing for all areas which were on donor support.”
Morwaeng said this is important as the such a plan will guarantee that all the gains accrued from the response with donor support will be sustained until the end when “we reach the elimination of HIV and AIDS as a public health threat by 20230,” he said.
“I commit to continue support efforts towards strengthened HIV prevention, accentuating HIV primary prevention and treatment as prevention towards Zero New Infections, Zero Stigma, Discrimination and Zero AIDS related death, to end AIDS in Botswana.”
He reiterated that government commits to tackle legislative, policy and programming challenges that act as barriers to the achievement of the goal of ending AIDS as a public health threat.
In the financial year 2022/2023, a total of 119 Civil Society Organizations, including Faith Based Organizations, were contracted with an amount of P100 million to implement HIV and NCDs prevention activities throughout the country, and the money was drawn from the Consolidated Fund.
Through an upcoming HIV Prevention Symposium, technical stakeholders will use outcomes to develop the Botswana HIV Prevention Acceleration Road Map for 2023-2025.
Morwaeng stated that government will support and ensure that Botswana plays its part achieving the road map. He said there is need to put hands on the deck to ensure that Botswana sustains progress made so far in the fight against HIV and AIDS.
“There are tremendous achievements thus far to, reach and surpass the UNAIDS fast track targets of 95%- 95%- 95% by the year 2025. As reflected by the BAIS preliminary results of 2021, we now stand at 95- 98- 98 against the set targets.”
“These achievements challenge us to now shift our gears and strive to know who are the remaining 5% for those aware of their HIV status, 2% of enrolment on treatment by those aware of their status and 2% of viral suppression by those on treatment.”
Explaining this further, Morwaeng said shift in gears should extend to coming up with robust strategies of determining where these remaining people are as well as how they will be reached with the necessary services.
“These are just some of the many variables that are required to ensure that as a country, we are well positioned to reaching the last mile of our country’s response to the HIV and AIDS pandemic.”