On 10th August 2018, the Botswana High Court agreed to a consent order in 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. This refusal was in violation of section 11 of the Children’s Act. The application requested an order declaring that the refusal by the Ministry of Nationality, Immigration and Gender Affairs violated the Children’s Act and discriminated against the father on the basis of gender in terms of Sections 3 and 15 of the Constitution. The final court order did not deal with the constitutional issues, but ordered the State to issue a birth certificate to the child within 7 days.
Background to the matter:
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 and care 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 to 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 2017, the state eventually in August 2018 agreed to a consent order which was conditional upon the father abandoning three important prayers: the first to declare the state’s refusal to register the child as unconstitutional; the second to reject that it discriminated against the father in this refusal and third 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 the state must issue the birth certificate within seven (7) days.
Phazha Molebatsi, the attorney representing the father stated, “The case creates an important precedent in situations where the details of a child’s birth are unknown to the father; that the 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”.
According to Kaajal Ramjathan-Keogh, SALC’s Executive Director, “The right to a name and nationality is one of the most fundamental human rights. But millions of children spend much of their lives without this legal identity and the benefits and protections it affords. We are pleased that this case has ended successfully. We encourage the state to issue guidelines to facilitate and fast track these protections for other undocumented children who may also have a claim to Botswana nationality.”
SALC supported attorney Phazha Molebatsi of Thabiso Tafila Attorneys to bring the case.
*Identification data and names have been omitted to protect the child.