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Earlier this month, a Botswana judge declared the country’s adoption laws unconstitutional, writes Carmel Rickard.
How should a judge respond when discriminatory aspects of customary law conflict with the constitution?
Earlier this month, Judge Oagile Dingake of the High Court in Gaborone declared Botswana’s adoption laws unconstitutional for this reason, in a decision that will set his country talking – and will be quoted round the world.
Dingake had to deal with the tragic relationship between a man, his 15-year-old daughter and her mother, none of whom can be named. The girl’s parents never married each other and the mother is party to her boyfriend’s attempt to adopt the girl.
Botswana’s adoption laws have no role for an unmarried father even, as in this case, where the father has been emotionally and financially supportive throughout a child’s life; not even, as in this case, when the boyfriend appears unstable and has threatened to kill the child.
The court heard how relations between the mother and T, her boyfriend, became strained, and the mother asked if the girl C could live with K, his wife and their children. He gladly agreed and in 2007 she moved to her father’s home.
Then the mother told K that T had threatened to find and kill the girl. K reported this to the police. They questioned T; he admitted making the threats and was warned.
Later, the mother demanded that the girl be returned to her and T. But soon after C’s return, the mother abandoned the girl following an argument with T, and C ended up with her maternal grandmother.
The girl is back with her mother and T, but the father has been stopped from any contact, although he continues his financial support.
Despite this history, T wants to adopt the girl – and the law makes the father powerless to prevent it. The courts were K’s last hope.
The mother in the case did not file any papers opposing K’s action but, at the last minute, she tried to stop the matter being argued in court – she had been “too busy” to act earlier, she said.
Unimpressed, Judge Dingake refused postponement, saying the casual way she had treated the matter and her “open contempt” of the court were “intolerable”.
The attorney-general also opposed K’s application, arguing that the law as it stood was constitutionally sound.
Under customary law, a child “born out of wedlock” belonged to his mother’s family, he said. The unmarried father had no legal rights “due to the surreptitious nature of the conception”.
In a judgment that analysed world trends on the subject of an unmarried father’s role, Judge Dingake dealt with the relationship between customary law and constitutional values, concluding that “culture” could not trump the constitution and must comply with notions of “fairness, equity and good conscience”.
There could be no disputing the care and support of the father, he said, and to suggest that K should have no say “when his child is about to be adopted by a man who threatened to kill her is the height of heartlessness and extremely demeaning to (K’s) human dignity”.
Discrimination against unmarried fathers who had shown commitment to the child could find no support in a modern society whose bill of rights was inspired by the right to dignity and equality, he said.
Parents, married or not, must be allowed to carry out their parental responsibilities towards their children and when a “grave question”, such as this one, confronted the court “we must declare what the law is”. Even when a law of parliament conflicted with the constitution “we must say so without flinching”.
The outcome is that Botswana’s adoption laws have been declared unconstitutional to the extent that the consent of unmarried fathers is not required; the girl may only be adopted by consent of K. Any adoption that might have taken place, without his consent, is set aside.
* Carmel Rickard is a legal affairs specialist. Email email@example.com or visit www.tradingplaces2night.co.za
** The views expressed here are not necessarily those of Independent Media.