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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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