Gaborone–On Monday, 2 February, the Botswana High Court delivered judgment in a constitutional challenge to the Adoption of Children Act. The Act allowed that a child who is born out of wedlock could be adopted by a third party without the consent of the child’s biological father.
The applicant, the biological father of a child born out of wedlock, argued that the Act violated his constitutional rights in a manner that is not in the child’s best interests. The government argued that the Act was constitutionally justified.
Judge Dingake held that it is irrational to discriminate against unwed fathers. He declared that to the extent that the Adoption of Children Act did not require the consent of an unwed father prior to adoption, it is unconstitutional.
According to Mr Ndadi, the applicant’s attorney, this case is monumental and timely. “Not only will this case enhance our jurisprudence, it will also impact on people’s lives. At the heart of any adoption case henceforth, the primary factor will be what is in the child’s best interest.”
“We are pleased that the judgment brings Botswana’s adoption laws in line with the more progressive Children’s Act of 2009 that places the child’s best interests at the heart of issues concerning the child,” says Cindy Kelemi from the Botswana Network on Ethics, Law and HIV/AIDS (BONELA).
“International and regional child law consistently emphasises that the focus should be on the child’s best interests. The Court has integrated this approach into Botswana’s adoption laws in a way which spares from discrimination fathers who play a positive role in their children’s lives,” says Anneke Meerkotter, Litigation Director at the Southern Africa Litigation Centre (SALC), which is providing assistance on the case.
For more information:
Cindy Kelemi, Director, BONELA: +267 393 2516 (o); +267 7238 5054 (m); firstname.lastname@example.org
Uyapo Ndadi, Attorney/Managing Partner, Ndadi Law Firm: +267 3907492 (o) +267 73770934 (m), email@example.com, firstname.lastname@example.org
Anneke Meerkotter, Litigation Director, SALC: +27 (0)10 596 8538 (o); AnnekeM@salc.org.za
For background on the case:https://www.southernafricalitigationcentre.org/cases/ongoing-cases/botswana-securing-the-parental-rights-of-fathers-2/