The State has said that in the event it loses an ongoing custody case in which a Gaborone man is challenging the adoption of his child by a step father without his consent, it proposes there be a referendum on whether unmarried fathers have paternity rights over their biological children, and whether or not that right can be taken away and transferred to a step father without their consent?
It is a common practice in Botswana for mothers to bring into their marriages children born to different fathers prior to marriage.
The unwed biological father of a child is challenging the legality of Section 4 (2) (d) (i) of the Adoption Act which permits a child born outside of wedlock to be adopted in all cases without the consent of the biological father.
In papers before court, David Moloise from the Attorney General Chambers states that “… it is submitted in the alternative that this matter is the one deserving of national referendum to determine the public’s perception on the point.”
He argued that the applicants in the case, (the biological father) has no rights over the child, neither under the country’s customary law nor common law.
Moloise however acknowleged that law has since evolved and that biological fathers are now given more recognition in the lives of their children.
“But that is where it ends. The father only has greater rights of involvement than he previously had and in no way should this be translated into meaning that the father now has anything more. Certainly not the right akin to a guardian as that still vests in the maternal lineage of the child,” he said.
He also argued that no consent is required from the biological father if the child’s mother is unmarried. Moloise said the Act being challenged in this case was not created for the right to demand consent merely to detail his duties as they concern his rights to involvement in the child’s upbringing. ┬á
The Act that is being challenged states that a court to which an application for an order of adoption is made shall not grant the application unless it is satisfied that consent to adoption has been given by both parents of the child or if the child is illegitimate, by the mother of the child whether or not such mother is a minor or married woman and whether or not she is assisted by her parent, guardian or husband as the case may be…”
In his founding affidavit, the biological father of the child who cannot be named for legal reasons states that the Act in question is harsh and insensitive to him as he is required by the law to be present in the affairs and upkeep of his child. “But I’m reduced to nothing when it comes to an important aspect of giving my child up for adoption or not. This pains me a great deal and causes me sleepless nights.”
He argues that he should have the same rights over his biological child as the child’s mother irrespective of whether or not they are married to one another.
“The law imposes duties on me when it comes to the upkeep and maintenance of my child and I find it unreasonable that when it comes to an important decision like adoption I’m excluded,” argues the father of the child.
He says in August 2012, the Magistrate Court ruled his daughter should live with her mother as she desired but that he should have visitation rights and further provide any support as necessary in agreement with the mother’s child.
He states that since that ruling, he has not seen his daughter as her mother has denied him access to her and that his daughter has not visited him during any of her school holidays. However, he says, he has continued providing his daughter with support, including providing her with her school uniform, transport money for school and her medical aid.
The father of the Child states that in 2013, he took a decision to stop providing support for his daughter as he was being denied access to her.
He said he informed the child’s mother that she was violating the Magistrate Court’s order giving him the right to visitation and that the mother of the child replied that “a court order is just a piece of paper” and that his child was also “her child and thus she can do whatever she pleases with her.”
The father of the child says that she also informed him that his daughter is being adopted by her step father adding that having his daughter living with her step father as opposed to him has been increasingly difficult. The father of the child is represented by Uyapo Ndadi of Ndadi Law Firm. The case continues before Justice Key Dingake.