15 SEPTEMBER 2014
On Monday 15 September 2014, the Gaborone High Court, Dingake J presiding, heard a constitutional challenge to Botswana’s Adoption Act.
The applicant is a father who seeks to prevent his minor child from being adopted against his wishes. The applicant 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, Mr Uyapo Ndadi, the applicant’s attorney, 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.
Mr Ndadi 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.
Mr DB Moloise argued on behalf of the Attorney General 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 grounds of discrimination. Mr Moloise argued further 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 Botswanan 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.
Mr Moloise argued further 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. Mr Moloise argued 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, Mr Ndadi sought to emphasise 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 J questioned both Mr Ndadi and Mr Moloise on their views of the traditional referent for children born out of wedlock as “illegitimate” children. Mr 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 Mr Moloise’s view, while the term “illegitimate child” was perhaps politically incorrect, it was “tolerable for legal purposes.”
Dingake J reserved judgment stating that he would need time to reflect on the case which, he noted, raised issues of national importance.
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