Botswana: Court recognises a child’s right to a name and nationality

Salc : Kaajal Ramjathan-Keogh

SALC supported a case challenging the refusal of the Attorney General and Permanent Secretary to the Ministry of Nationality, Immigration and Gender Affairs to register the birth of a child born to a Botswana father. The child was born to a Botswana father and a Zimbabwean mother who abandoned the child at 1 year old. The child has been in the custody of the father since 2001 from the time she was 1 year old and the father has been, despite numerous attempts to do so, unable to register the birth of his child and have a birth certificate issued. A paternity test had already confirmed that the client is the father of the child- and the state was in possession of this proof. Despite this proof they continually refused to register the child demanding proof of the mother’s details and whereabouts as well as the place of birth of the child. These details are unknown to the father and could not be produced.

After seventeen (17) years of trying to register the child’s birth failed and more than a year after the case was filed in mid- 2017 after liaison with the state failed to reach a solution. In August 2018 the state eventually agreed to a consent order which was conditional upon the father abandoning two important prayers: the first to declare the state’s refusal to register the child as unconstitutional; and the second to abandon the request for the state to put in place a system to register the birth of other children in similar circumstances. Despite the consent order in which the state offered to issue the birth certificate within 30 days, the court ordered that that state must issue the birth certificate within seven (7) days.

The case creates an important precedent in situations where the details of a child’s birth are unknown to the father; that father who is able to prove paternity can still register the child’s birth and request that a birth certificate is issued. This case is significant in recognising a child’s right to a name and nationality. It is also important in recognising single fathers’ rights to be able to register the births of their children.

SALC supported attorney Phazha Molebatsi of Thabiso Tafila Attorneys to bring the case.