The Southern Africa Litigation Centre (SALC) and the Botswana Network on Ethics, Law and HIV/AIDS (BONELA) on Monday welcomed a ground-breaking ruling by Gaborone High Court Justice Key Dingake.
The Court ruled that unmarried fathers should have the same rights over their biological children as mothers irrespective of whether they are married to them or not.
In the suit, the unwed father was challenging the legality of section 4 (2) (d) (i) of the Adoption Act, which permits an illegitimate child to be adopted in all cases without the consent of its biological father.
Dingake concurred with the biological father’s lawyers, Ndadi Law Firm that it was unconstitutional to adopt a child without the consent of his biological father.
The judge observed that despite some documented judgments relating to the same matter that was brought before the courts, the Attorney General keeps on ignoring such court decisions.
Falling short of accusing the Attorney General of contempt of court, Dingake noted that “the Attorney General does not want to listen to what the courts are saying.”
┬áDingake added that “this court notes in passing that the attitude or standpoint of the Attorney General towards section 15(4) has not changed since the case of Unity Dow and even the recent decision of the Court of Appeal in Ramantele’s case (the courts upheld the right of sisters to inherit their family homestead, rejecting the argument that under Ngwaketse customary law only sons were allowed to inherit it.”
“Their defense (Attorney General) of section 15(4) appears not to be informed by the development in the case law,” he said. ┬á
The Section in question lists grounds upon which it is not permissible to discriminate; on the basis of race, tribe, place of origin, political opinions, colour or creed.  
The judge further observed that the same Section does not constitute a closed list but an open one.
“The advantage with the open list system is that it allows the court to add on the grounds in accordance with the evolving norms of society and the values of International Human Rights Regime,” said Dingake.
He added that “In my view, it is unfair gender discrimination to require consent of a mother, but not of a father to adopt a child out of wedlock. Although the ground of gender is not mentioned in Section 15, it is necessarily implied or analogous to the grounds listed. Less favourable treatment of the applicant (biological father) on socially constructed roles has the potential to impair his fundamental dignity as a person as is therefore impermissible.”
Turning to customary laws that the Attorney General relied in its defense, Dingake found that “there was no rational and justifiable basis for sticking to the narrow norms of days gone by when such norms go against current value systems.”
He said any custom that is in conflict with the constitution is invalid to the extent of its inconsistency.
“The same position applies to legislation. Any legislation that is inconsistent with the constitution is invalid to the extent of its inconsistency,” said Dingake
He said the child’s biological father had been treated less favourably by the Adoption of Children’s Act Cap 28:01 than a woman.
This he said is because of the prejudicial or stereotypical cultural views that a child born out of wedlock belongs to the mother; the father is effectively excluded from parenting responsibilities because he is considered less fit to exercise parental role simply because he is an unwed father.
Dingake said such section 4 (2) (d) (i) is discriminatory against unwed fathers even when their identity is known and have shown commitment to the welfare of the child.
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.
Dingake further observed that customary law is not static and should continuously be modified to keep pace with the modern life.
He said any adoption of the child can only be done with the consent of her biological father adding that “any adoption of Second Respondent (child) without the Applicant (biological father’s) consent is rescinded.”
Commenting on the ruling, SALC, which provided assistance on the case, Anneke Meerkotter, said ┬á “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.”
BONELA Executive Director Cindy Kelemi said “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.”
For his part, the applicant’s attorney, Ndadi said the 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,” he said.
