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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF BOTSWANA HELD
AT GABORONE

MAHGB-000291-14

DATE: 02 FEBRUARY 2015

In the matter of:

[G……]
[K……….]……………………………………………………………Applicant

And

[B………] [O…….]
[K………….]……………………………….1st
Respondent

[C………] [G……..]
[L…..] [K…]……………………………..2nd
Respondent

[M……..]
[T………..]……………………………………………….3rd
Respondent

The Attorney
General………………………………………………..4th
Respondent

Mr. U. Ndadi (with Mr. P. Molebatsi
and

Mr. T. Bobodhla) for the Applicant

Mr. D. Moloise for the 4th
Respondent

J U D G M E N T

DINGAKE J:

Introduction

1. This is an application in which the
applicant, Mr. K…….., is challenging the
constitutionality of Section 4 (2)
(d) (i) of the Adoption of
Children Act Cap 28:01, in so far as it does not require his
consent for the adoption of his child,
just because such child was
not born in wedlock.

2. The applicant’s case is that
he is being discriminated against on the basis of sex or marital
status.

3. The 1st Respondent, although having
been served with the application, did not file any opposing papers
within the time allowed
by the rules, nor within the extended period.
Her last minute attempt to postpone this matter was rejected by this
court because
she simply told the court that she has been too busy to
attend court papers timeously. The casual manner in which she treated
this
matter and her open contempt of the processes of this court were
intolerable.

4. Fortunately, for the 1st, 2nd, 3rd
Respondents and the court, the Attorney General, who opposes this
matter has filed comprehensive
heads to assist the court.

5. The 1st Respondent, is the 2nd
Respondent’s mother. The 2nd respondent, C……. is
the child at the centre of
the contemplated adoption proceedings, the
subject matter of this litigation.

6. The 3rd Respondent is the boyfriend
to the 1st Respondent, who seeks to adopt the 2nd Respondent.

Factual background

7. The facts underpinning this
litigation are largely common cause. The applicant’s averments
which have not been contradicted
by any opposing papers stand as the
truth.

8. The applicant, Mr. G……..
K…… is the biological father of a female minor, called C…….
G…….
L……… K……
(Hereinafter referred to as C……) who was a product of a
brief romantic
relationship. She came into this world in 2000.

9. C………’s
parents were not married at the time of her conception, nor at the
time of her birth. Their
romantic relationship ended before she was
born.

10. The applicant has played an active
role in his daughter’s life, including providing care and
support during the 1st Respondent’s
pregnancy and following the
child’ birth.

11. Once the child was born, the
applicant sought to support the child through providing finances and
supplies. The applicant continued
to follow up on the child’s
wellbeing, meeting the child when the 1st Respondent permitted him to
do so.

12. It is not in dispute that between
2004 and 2006, the applicant went to Norway to further his studies.
His wife agreed to be
available to attend to the child’s needs
while he was away. The 1st Respondent, the child’s mother, was
informed and
understood the arrangement. It is also not in dispute
that the applicant’s wife contacted the 1st Respondent
regularly during
this time to check on the child’s wellbeing on
his behalf.

13. Upon his return to Botswana in
2006, the applicant reconnected with the child and continued to
support her. The child spent
at least one weekend every month with
him and his wife.

14. It would appear that in due course
of time, the 1st Respondent’s relationship with the 3rd
Respondent entered a rough
patch. In consequence of this, the 1st
Respondent asked if the child could live with the applicant. They
agreed that from 2007,
the child would stay with the applicant and
that he would put the child through school. The applicant was happy
with this arrangement
as he desired to raise the child with her
half-siblings in his home.

15. In 2007, the child moved in with
his family and was enrolled in an English Medium School. They moved
to M…… with
the 1st Respondent’s consent. During
school holidays, the applicant arranged that the child visit her
mother at his expense.

16. Within a few months, ominous signs
of trouble started to show. The 1st Respondent contacted the
applicant indicating that the
3rd Respondent had threatened to find
and kill the child. Concerned about his child’s safety, the
applicant and his wife
reported the threat to the police who
questioned the boyfriend. The boyfriend admitted to having
threatened to kill the child.
The police released the 3rd Respondent
with a warning that he should stay away from the child.

17. During the Christmas holidays in
2007-2008, the applicant arranged for the child to be with her
mother. After the child returned
to the applicant, the 1st
Respondent contacted him and demanded that the child be returned to
her to live together with the boyfriend.
The applicant, concerned
for his child’s welfare, tried to reason with the 1st
Respondent and sought the assistance of social
workers.

18. In due course of time, the social
workers undertook to conduct an assessment and advised that the child
should be returned to
her mother in the meanwhile.

19. Shortly thereafter, the applicant
was contacted by the 1st Respondent’s sister who indicated that
the 1st Respondent had
abandoned the child after arguing with the
boyfriend. The child eventually went to stay with her maternal
grandmother.

20. As months ticked by, the applicant
appeared to have been struck by doubt as to whether he is the father
to the minor child and
arranged for a paternity test to be conducted.
His paternity was confirmed and he continued to support the child. On
the papers,
it is not apparent what could have triggered the doubt.

21. In no time the applicant launched
an application for shared custody of the child in the Magistrate
Court. The court considered
two social worker’s reports. One
report recommended that the applicant be granted custody over the
child and the 1st Respondent
be given visitation and access rights.
The other report recommended that the child stay with the 1st
Respondent and the applicant
be given access and visitation rights.

22. It is instructive that the court
found that the applicant loves his daughter so much but so does the
mother. The court considered
that there were no compelling reasons
to remove the child from her mother because she was at no threat of
harm where she was then
staying with her aunt and that the child had
expressed a preference to stay with her mother.

23. The court ordered that the child
should stay with the 1st Respondent and granted visitation rights to
the applicant, who was
to provide further support as necessary and in
agreement with the 1st Respondent.

24. The applicant avers in his papers
that thereafter he was denied access to the child and has not been
permitted to see her despite
the court order. He nevertheless
continued to support her by providing finances to get her to school
and providing school uniforms
and attending to her medical needs
through his medical aid.

25. The applicant fears that the 2nd
Respondent is in the process of being adopted by the 3rd Respondent
without his consent.
He avers that he has no way to ascertain
whether or not the child has been adopted as he is irrelevant in the
whole process.

26. The above constitutes the
undisputed facts that underpin this litigation.

The case of the Applicant

27. The applicant’s case is that
Section 4 (2) (d) (i) of the Adoption of Children Act Cap 28:01, in
so far as it does not
require his consent for the adoption of the
child, just because the said child was born out of wedlock, violates
his constitutional
rights, being freedom from discrimination, freedom
from inhuman and degrading treatment and the right to fair hearing.

28. The applicant, relying on a number
of well-known cases in this jurisdiction, such as Attorney General v
Dow (1992) BLR 119 (CA) and Diau v Botswana Building Society 2003 (2)
BLR 409 (IC) urges the court to interpret the Constitution
purposively and generously.

29. It is the applicant’s case
that precluding the requirement of a biological father’s
consent, in all circumstances,
for the adoption of his child,
discriminates unjustifiably against him, on basis of his sex and
marital status, in violation of
Section 15 of the Constitution.

30. The applicant points out that
discrimination based on sex is prohibited by Section 15 of the
Constitution and further that although
marital status as a ground is
not listed in Section 15, it is similarly impermissible to
discriminate on that basis.

31. Mr. Ndadi, learned counsel for the
applicant, relying on the authority of the Court of Appeal decision
in Dow, cited, supra,
argued that the grounds listed in Section 15 of
the Constitution, upon which it is not competent to discriminate, are
not exhaustive.

32. Mr. Ndadi argued that in
determining whether a particular class of people are protected under
Section 15 (3), the courts have
looked to whether there is an
identifiable group or class of persons who suffer discrimination as
such a group or class for no
other reason than the fact of their
membership of the group or class.

33. According to Mr. Ndadi, learned
counsel for the applicant, Mr. K…… is subjected to
differential treatment solely
because he was not married to the 1st
Respondent.

34. According to Mr. Ndadi, the
differential treatment afforded to unmarried fathers under Section 4
(2) (d) (i) is irrational and
unfair in that it, inter alia, allows,
in effect, for the unilateral termination of the rights and duties of
biological fathers,
and entrench the view which is contrary to the
best interest of the child, that fathers do not have or should have
less attachment
towards their children, particularly when not
married.

35. Mr. Ndadi contended that the effect
of denying unmarried fathers a legally protected relationship with
their children was to
discriminate unfairly and irrationally against
them on the basis of sex or marital status.

36. Mr. Ndadi, placing heavy reliance
on the South African case of Fraser v Children’s Court Pretoria
North and Others (1997)
ACC 1, submitted that a father who has shown
interest in the child and actively participated in her upbringing
such as the applicant,
should be allowed to withhold consent to the
adoption of his child.

37. Mr. Ndadi also relied on the
Canadian case of In Re MacVicar and Superintendent of Family and
Child Services, et al, 34 DLR (4th) 488 (B.C.SC. 1986) (Canada,
British Columbia, Supreme Court), which, consistent with the Fraser
decision, found no justification for
discriminating against unwed
fathers.

38. The applicant also argues that to
deny him the right to withhold consent to his child’s adoption
is treatment that dehumanizes
him and is undignified in that it
terminates his manifested connection with his child. The applicant
says that to deny him parental
relationship with his child is to deny
him an intimate aspect of his humanity.

39. The applicant also complains that
Section 4 (2) (d) (i) also violates his right to a fair hearing to
the extent that it does
not require his consent for the adoption of
his child. He says that this denial violates Section 10 (9) of the
Constitution.

The case of the Attorney General

40. The Attorney General opposes the
application.

41. The position of the Attorney
General is that Section 15(3) of the Constitution is not violated
because the applicant is simply
complaining that he is being
discriminated against by virtue of being unmarried as opposed to a
married man. Consequently, it
is argued that he cannot complain that
he is being discriminated on the basis of sex.

42. Mr. Moloise, learned counsel for
the 4th Respondent, argued that the description of the applicant as
an unmarried man relates
to social standing and not to any of those
grounds mentioned in Section 15(3) and certainly cannot be squeezed
in to the sex category.

43. According to Mr. Moloise, learned
counsel for the Attorney General, the social standing of being an
unmarried father is not
one of the listed grounds in Section 15, upon
which it would not be permissible to discriminate.

44. Mr. Moloise submitted further that
Section 15 (3) does not prohibit discrimination on grounds of social
standing or status and
certainly not marital status, and therefore
this prayer should be dismissed.

45. Mr. Moloise, learned counsel for
the Attorney General, pointed out that the matter before the court
concerns adoption, one of
those instances specifically prohibited by
Section 15 (4) (c).

46. According to Mr. Moloise, Section
4(2) (d) (i) of the Adoption Act is an attempt at the codification of
both the common law
as well as the customary laws of Botswana. Mr.
Moloise submitted that in order to understand the rational and
justification behind
Section 4(2)(d)(i) one must look at it from its
origin and the purpose it served.

47. The Attorney General argued that in
terms of our customary law, a child born out of wedlock belongs to
the mother’s family.

48. According to Mr. Moloise, in terms
of customary law, the father of a child born out of wedlock has no
legal rights over the
said child due to the surreptitious nature of
conception. Such child, the court was told, is or was normally
referred to as “ngwana
wa dikgora” to denote his
illegitimate status. The inspiration for this line of reasoning was
derived from Schapera, who
wrote on Botswana Customary Law many, many
decades ago.

49. The Attorney General is not wholly
wedded to Schapera, lock, stock and barrel, because Mr. Moloise
concedes that the above position
has changed through various
legislative instruments which now see the biological father being
recognized as the father of the child,
although his rights are only
limited to the best interests of the child in so far as upbringing is
concerned.

50. According to Mr. Moloise, learned
counsel for the Attorney General, the biological father acquires a
limited right to be consulted
only where the biological father has
been actively involved in the child’s life from the beginning.

51. The Attorney General argued that in
terms of customary law, the infringing father was and is still
charged a number of beasts
as a sanction for having violated, not
only the lady in question, but for also disrespecting the mother’s
family and bringing
shame upon them.

52. The Attorney General submits that
the above, is the rationale and justification behind Section
4(2)(d)(i) of the Adoption of
Children Act.

53. The 4th Respondent also denies that
Section 7 of the Constitution is implicated and applicable in this
matter.

54. With respect to the applicant’s
argument that Section 10 (9) of the Constitution has been violated by
permitting the adoption
to proceed, while the applicant has a court
order permitting him visitation and other privileges and that this
would be tantamount
to taking away those rights without giving him a
fair hearing, the Attorney General argues that if the applicant feels
that any
adoption will take away his rights, he is permitted and
should correctly approach the court for an appropriate order wherein
Section
10 (9) shall apply.

55. The Attorney General also argued
that there is no conflict between the Adoption Act and the Children’s
Act. Mr. Moloise
argued that if the child is adopted, the
consequences thereof would be to terminate the rights of the
biological father as are
granted or contained in the Children Act.

56. It is plain that the applicant
approached this court to assert his right to equality and not to be
discriminated against. In
the result, it is imperative to consider
the concept of equality, broadly defined.

Conceptual framework

57. Equality is one of the
philosophical foundations of human rights and it is intimately
connected to the concept of justice.
The concept at its core, speaks
the language of the Universal Declaration of Human Rights (UDHR) of
1948, which stipulates that:

“All are equal before the law and
are entitled without any discrimination to equal protection of the
law” (See J Cooper
“Applying equality and
non-discrimination rights through the Human Rights Act, in G Moon
(ed) Race discrimination: Development
and using a new legal
framework (2000) 39); (See also, Southern African Litigation Centre,
et al: Using the Courts to Protect
Vulnerable People: Perspective
from the Judiciary and Legal Profession in Botswana, Malawi, and
Zambia Southern Africa.”
(2015)

58. The history of humanity would bear
testimony to the assertion that human beings have, overtime, suffered
discrimination on irrational
grounds whose net effect was to rob some
members of the human race of dignity.

59. The injunction “all are equal
before the law and are entitled without any discrimination to equal
protection of the law”
is not a rhetorical statement. It is a
substantive statement founded on the sad lessons of history. The
above phrase has stirred
hearts around the world and courts across
the globe have a sacred duty to give effect to it in practice.

60. The idea that all are equal before
the law was considered radical prior to 1948, even though today we
consider such phrase as
expressing the norm. The idea that all are
equal before the law inspired many subsequent international legal
instruments such
as the European Convention of Human Rights of 1953,
that inspired the Botswana Constitution.

61. The European Convention of Human
rights was opened for signature on the 4th of November, 1950, in
Rome. It was ratified and
entered into force on the 3rd of
September, 1953. It is overseen and enforced by the European Court
of Human Rights.

62. As history teaches, our
Constitution pledged more than what we, as a people, were willing to
grant in fact, as exemplified by
the opposing arguments of the
Attorney General advanced in the Attorney General v Dow1992 BLR 119
(CA)case. In the aforesaid case,
some of the arguments advanced by
the Attorney General demonstrated a continuing reluctance to extend
equal protection to women,
on the ground that the framers of the
Constitution deliberately intended to discriminate on the basis of
sex because Botswana is
a patriarchal society. However, the court in
rejecting the above argument made all Batswana heirs to the promise
of the equal
protection clause in Section 3 of the Constitution. This
court shall determine, in due course, whether the applicant was one
such
heir.

63. The Concept of equality and that of
non-discrimination are considered to be the positive and negative
statements of the same
principle.

64. Benson has pointed out that:

“Generally speaking, equality and
non-discrimination are positive and negative statements of the same
principle. One is treated
equally when one is not discriminated and
one is discriminated against when one is not treated equally”
(see S Benson “Gender
Discrimination under EU and EUCHR Law:
Never should the Train meet? 8:4 Human Review (2008) 647-982 p652)

65. Equality is a problematic concept
ridden with controversy. At its core, it communicates the idea that
people who are similarly
situated in relevant ways should be treated
similarly.

66. A distinction must be drawn between
formal and substantive equality. Formal equality simply means
sameness of treatment. It
asserts that the law must treat
individuals in like circumstances alike. Substantive equality on the
other hand requires the law
to ensure equality of outcome and is
prepared to tolerate disparity of treatment to achieve this goal.

67. Simply put, formal equality
requires that all persons are equal bearers of rights. Formal
equality does not take actual social
and economic disparities between
groups and individuals into account. Substantive equality requires
an examination of the actual
social and economic conditions of
individuals in order to determine whether the right to equality has
been violated.

68. The above distinction, especially
the emphasis on substantive equality, requires a thorough
understanding of the impact of the
discriminatory action upon a
particular category of people concerned, in order to determine
whether its overall impact is one which
furthers the constitutional
goal of equality or not. It follows, therefore, that a
classification which is unfair in one context
may not necessarily be
unfair in a different context.

69. It is not every differentiation
that amounts to discrimination. Consequently, it is always necessary
to identify the criteria
that separate legitimate differentiation
from constitutionally impermissible differentiation. Put
differently, differentiation
is permissible if it does not constitute
unfair discrimination.

70. The jurisprudence on discrimination
suggests that law or conduct which promotes differentiation must have
a legitimate purpose
and should bear a rational connection between
the differentiation and the purpose.

71. The rationality requirement is
intended to prevent arbitrary differentiation. The authorities on
equality suggest that the right
to equality does not prohibit
discrimination but unfair discrimination. The question that often
arises is what makes the discrimination
unfair.

72. The determining factor is the
impact of the discrimination on its victims. Unfair discrimination
principally means treating
people differently in a way which impairs
their fundamental dignity as human beings. The value of dignity is
thus of critical importance
to understanding unfair discrimination.
Unfair discrimination is differential treatment that is demeaning.
This happens when
law or conduct, for no good reason, treats some
people as inferior or less deserving of respect than others. It also
occurs when
law or conduct perpetuates or does nothing to remedy
historical prejudices and stereotypes.

73. The principle of equality attempts
to make sure that no member of society should be made to feel that
they are not deserving
of equal concern, respect and consideration
and that the law is likely to be used against them more harshly than
others who belong
to other groups.

Challenges, tensions and contradictions
in interpreting equality clauses

74. Difficulties of interpreting
equality clauses remain. These problems all derive from a fundamental
problem: it remains unclear
as to what ‘treating persons
equally’ actually involves. Certain types of discrimination may
be necessary and appropriate:
other types may be suspect or
offensive. Distinguishing between ‘acceptable’ and
‘unacceptable’ forms of
discrimination may thus be
complex and controversial.

75. It may also be unclear when it
might be justified to give special advantages to some groups to
compensate for past disadvantage,
or when exceptions to a standard
prohibition on a particular type of discrimination should be
permitted.

76. The South African Supreme Court has
in the main, adopted an ‘anti-classification’ approach,
whereby the use of
‘suspect’ distinctions such as colour
or ethnic origin is treated as inherently unconstitutional, even
where such
distinctions are being used to identify groups in need of
special assistance. At times, however, the Court has also veered
towards
an ‘anti-subordination’ approach, to issues of
equality, whereby the emphasis is placed on eliminating group
disadvantage
rather than on prohibiting the use of suspect
characteristics. (See Prinsloo v Van der Linde [1997] ZACC 5; 1997 (3) SA 1012;
Harsken v Lane No [1997] ZACC 12; 1998 (1) SA 300; President of the Republic of South
Africa v Hugo [1997] ZACC 4; 1997 (4) SA 1; National Coalition for Gay and Lesbian
Equality v Minister of Home Affairs [1999] ZACC 17; 2000 (2) SA 1 (CC)).

77. At the heart of this dispute is the
question whether the Adoption of Children Act, Section 4 (2) (d) (i)
thereof, constitutes
constitutionally impermissible discrimination on
the basis of sex or marital status, having regard to both Sections 3
and 15 of
the Constitution of Botswana.

78. Before analyzing Sections 3 and 15
of the Constitution, and applying it to the facts of this case, it
makes sense to remind
ourselves of the guiding principles to
constitutional interpretation.

The Approach of the Courts to
Constitutional Interpretation

79. In this section, I refrain from
reproducing the guiding principles that are now trite and I will
deliberately attempt to focus
on those that are more in tune with the
present matter; those that relate to interpreting the Constitution as
a living document.

80. In interpreting the Constitution,
the courts must reflect the nation’s best understanding of its
fundamental values. The
power of constitutional decisions rest upon
the accuracy of the courts’ deep appreciation of the values of
the societies,
of which it is the guardian of the rights granted to
everyone. For as Alexandra Hamilton said; independent courts serve
as a
barrier to the encroachment and oppressions of those bestowed
with public and private power and plays important role in safe
guarding
individual rights and liberties.

81. A Constitution must be interpreted
in its contemporary social context, not according to a situation that
prevailed when it was
adopted, otherwise, as Friedman J observed “it
will cease to take into account the growth of the society which it
seeks to
regulate” Nyamakati v President of Bophuthatswana
1992 (4) SA 540 at 567).

82. A Constitution must be interpreted
as a living document. On this view, the Constitution is understood to
grow and evolve over
time as the conditions, needs, and values of our
society change. On this approach, constitutional interpretation must
be informed
by contemporary norms and circumstances, not what the
original framers had in mind.

83. It is generally agreed that to be
faithful to the Constitution is to interpret its words and to apply
its principles in ways
that sustain their vitality over time.
Fidelity to the Constitution requires judges to ask not how its
general principles would
have been applied when the Constitution was
crafted, but rather how those principles should be applied today, in
accordance with
the values and dynamics that inform the contemporary
era.

84. The men, (yes–men) who
gathered in Lobatse and other venues to craft our Constitution, prior
to our independence in 1966,
could not have imagined that one day the
court would outlaw discrimination based on sex, given the deep seated
nature of patriarchy
at that time. But our contemporary society
frowns upon discrimination based on sex and this court has to reflect
the contemporary
norms of society. The credit for keeping the
Constitution up to date does not belong to the framers of the
Constitution. It belongs
to the judiciary that is enjoined to
interpret the Constitution as a living document. It belongs, to the
judiciary that refused
to acquiesce or accept the argument that the
framers intended to discriminate on the basis of sex, by omitting the
word “sex”
in the prohibited grounds stated in Section 15
(1).

85. The courts, in interpreting a
Constitution as a living document, must be agents of change, and
should not be stuck in the ideas
and values of yesteryear –
for, as it is has often been said, sometimes change is essential for
fidelity, but refusing to
change in the light of changed
circumstances may amount to infidelity and working counter to the
dictates of the Constitution.

86. Interpreting the Constitution as a
living document requires that a text that falls for determination be
construed to have the
capacity to adapt to a changing world,
otherwise, rights declared in words may be lost in reality.

87. Strict constructionists, who urge
us to stick to the original meaning the framers intended and even
urge us not to readily invoke
the Constitution but rather to adopt
the doctrine of avoidance, tend to simplify and underrate the value
and great purpose of the
Constitution, their reasoning is often
appealing on the surface, but on close scrutiny, it is unduly
restrictive and does grave
injustice to the educational value of
invoking the supreme law and the resulting public benefit.
Constitutional phobia should not
be one of the attributes of judges
in a jurisdiction such as ours, where the Constitution is the mother
of all laws.

88. Currie argues that the above
approach, of avoiding the Constitution, translates into a preference
for decisions in constitutional
cases that are shallow and narrow,
minimally reasoned and confined in their impact on subsequent cases
as opposed to deep and broad
(widely reasoned and with wide
implications for subsequent cases (see Currie, “Bill of Rights
jurisprudence”, Annual
survey of South African Law 2001 at 45)

89. It seems to me that reading the
Constitution’s text and principles in light of changing norms
and societal consequences
is not radical. What is radical is an
insistence that the Constitution be given a mechanical and static
meaning divorced from contemporary
context.

90. Having regard to all the above, it
makes sense to have regard to the relevant statutory framework:
Adoption of Children Act
sought to be impugned and the broad
statutory framework governing the rights of children, being the
Children’s Act of 2009.

A synopsis of relevant statutory
framework governing adoption and rights of children

91. Section 4 2 (d) (i) of the Adoption
of Children Act provides as follows:

(1) The adoption of a child shall be
effected by the order of the court of the district in which the
adopted child resides, granted
on the application of the adoptive
parent or parents.

(2) A court to which application for an
order of adoption is made shall not grant the application unless it
is satisfied-

(a) that the applicant is or that both
applicants are qualified to adopt the child;

(b) that the applicant is or that both
applicants are of good repute and a person or persons fit and proper
to be entrusted with
the custody of the child and possessed of
adequate means to maintain and educate the child;

(c) that the proposed adoption will
serve the interests and conduce to the welfare of the child;

(d) that consent to the adoption has
been given –

(i) 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 maybe.”

92. Section 4 (2) (d) (i) is quite
clear. Essentially, it contemplates that consent for the adoption of
a child born out of wedlock
can only be granted by the mother of the
child. The father is irrelevant and is of no consequence.

93. The question that arises is whether
the unwed father’s rights or interests in his child are
entitled to protection?

The position of unwed fathers in the
Children’s Act of 2009

94. The Children Act of 2009 recognises
the unmarried father as a parent and acknowledges that there is a
relationship between him
and his offspring – with the exception of
those children sired through rape or incest.

95. The current Children Act, with its
enhanced acknowledgment of the parental role of unmarried biological
fathers, would seem
to suggest that some biological fathers hold
protected rights regarding the parent-child relationship, especially
as seen from
the perspective of the child and their best interests,
which are to be considered paramount in all decisions concerning
children.

96. The Children Act defines the parent
to include biological parents (no distinction is made on the basis of
marital status) with
the exception of those biological fathers whose
children were sired through an act of rape or incest with the
biological mother.

97. The stated objectives of the Act
include acknowledgement of the:

“primary responsibility of
parents … to care for and protect children, and to support and
assist them in carrying out
that responsibility.” (See Section
4(d))

98. The Act contains a Bill of
Children’s Rights to supplement the rights set out in Chapter
II of the Constitution. These
rights include the right to a birth
certificate indicating the name and particulars of the biological
father “whether the
child is born in or out of wedlock.”
(See Section 12(4))

99. Section 13 of the Children Act
provides that a child has a right to know and be cared for by both
biological parents.

100. Section 28 goes further and
outlines the rights of every parent, including those of the unmarried
father. These rights (subject
to the best interests of the child)
include the right to: have the child live with them; be involved in
the child’s upbringing;
and to participate in court and other
proceedings relating to his child.

101. The Children Act has established
that the unmarried father may no longer be categorically excluded
from the legal definition
of “parent” and thus must
participate in legal proceedings concerning the future of his child.

Comparative Case Law on the position of
the Unwed father with respect to adoption of his child United
Kingdom/Europe

102. Currently, unmarried fathers in
England receive protection only when they embrace fatherhood or
express commitment to their
children’s mothers. The general
rule is that where a family tie exists between parent and child, then
the State must act
in a manner that allows that tie to be developed.
Failure to do so will amount to a breach of Article 8 of the European
Convention
on Human Rights (the European Convention).

103. In Keegan v Ireland [1994] ECHR 18; [1994] 18 EHRR
342 an unmarried couple living together planned to have a child.
Shortly after the child was conceived, the relationship broke down.

The father saw his baby once. The child was placed for adoption
without his knowledge or consent. He applied to be appointed the

child’s guardian, but by the time his application came to be
decided, the child had formed bonds with the prospective adopters
and
could not be moved without damage to her welfare.

104. In the case of S. v The Adoption
Board [2009] IEHC 429, the court held that in establishing whether
family life exists as between a natural father and his child, it is
apparent that
the court will adopt a pragmatic approach in
identifying the necessary personal ties. If this relationship exists,
a very high
threshold must be reached to demonstrate that those ties
have been extinguished by subsequent events. If a natural father who
enjoys
family life with his child is deprived of any participation in
adoption proceedings, this may or may not result in a finding of
a
breach of Article 8. It will have to be established, in the context
of the specific case, whether such a decision to exclude
him was “in
accordance with the law”, pursued a “legitimate aim”
and whether it was “necessary in
a democratic society”,
in the sense of being a proportionate measure in the circumstances.
It is clear that a child’s
interests may override that of a
natural parent.

105. In Re H; Re G (Adoption:
Consultation of Unmarried Fathers), [2001] 1 FLR 646 (first case),
the parents had a relationship, including cohabitation, which had
lasted for several years and the father had shown
continuing
commitment to the elder child. The father was therefore entitled to
respect for a family life with the child under Art
8(1) of the
European Convention for the Protection of Human Rights and
Fundamental Freedoms 1950.

106. The court held that to place the
child for adoption without notice to the father would prima facie be
in breach of this right,
and in accordance with Art 6 (1) and under r
15(3) of the Adoption Rules 1984, the father should be given notice
and made a respondent
with the opportunity to be heard.

United States of America

107. The United States Supreme Court
has protected fathers’ legal rights mostly through the Equal
Protection and Due Process
Clauses of the Fourteenth Amendment.
Although the parent-child relationship is therefore recognised to
merit protection, this protection
is conditioned on certain specific
circumstances that trigger it.

108. The courts in the United States
have grappled with the question of the rights of putative fathers. In
the 1972 case of Stanley
v. Illinois, 404 U.S. 645 (1972) Joan
Stanley lived with Peter Stanley intermittently for 18 years, during
which time they had three children. When Joan
Stanley died, Peter
Stanley lost not only her but also his children.

109. Under Illinois law, the children
of unwed fathers become responsibility of the State upon the death of
the mother. Accordingly,
upon Joan Stanley’s death, in a dependency
proceeding instituted by the State of Illinois, Stanley’s children
were declared the
responsibility of the State and placed with
court-appointed guardians. Stanley appealed, claiming that he had
never been shown
to be an unfit parent and that since married fathers
and unwed mothers could not be deprived of their children without
such a showing,
he had been deprived of the equal protection of the
laws guaranteed him by the Fourteenth Amendment.

110. The Supreme Court held that the
State of Illinois was barred, as a matter of both due process and
equal protection, from taking
custody of the children of an unwed
father, absent a hearing and a particularised finding that the father
was an unfit parent.
The court concluded, on the one hand, that a
father’s interest in the “companionship, care, custody, and
management”
of his children is “cognizable and
substantial,” [at 651-652] and, on the other hand, that the
State’s interest in caring
for the children is “de minimis”
if the father is in fact a fit parent, [at 657-658].

111. In another key US case on the
matter, Quilloin v. Walcott [1978] USSC 35; (434 US 246 (1978)) the issue was the
constitutionality of Georgia’s adoption laws as applied to deny an
unwed father authority to prevent
adoption of his illegitimate child.
The child was born in December 1964 and had been in the custody and
control of his mother,
appellee Ardell Williams Walcott, for his
entire life. The mother and the child’s natural father, appellant
Leon Webster Quilloin,
never married each other or established a home
together, and in September 1967 the mother married appellee Randall
Walcott.

112. In March 1976, she consented to
adoption of the child by her husband, who immediately filed a
petition for adoption. Appellant
attempted to block the adoption and
to secure visitation rights, but he did not seek custody or object to
the child’s continuing
to live with appellees. Although appellant was
not found to be an unfit parent, the adoption was granted over his
objection.

113. The Appellant contended that even
if he was not entitled to prevail as a matter of due process,
principles of equal protection
required that his authority to veto an
adoption be measured by the same standard that would have been
applied to a married father.

114. In particular, appellant asserted
that his interests were indistinguishable from those of a married
father who is separated
or divorced from the mother and is no longer
living with his child, and therefore the State acted impermissibly in
treating his
case differently.

115. The Supreme Court held that:

“… the appellant’s interests
are readily distinguishable from those of a separated or divorced
father, and accordingly believe
that the State could permissibly give
appellant less veto authority than it provides to a married father.

Although appellant was subject, for the
years prior to these proceedings, to essentially the same
child-support obligation as a
married father would have had, compare
§ 74-202 with § 74-105 and § 30-301, he has never
exercised actual or legal
custody over his child, and thus has never
shouldered any significant responsibility with respect to the daily
supervision, education,
protection, or care of the child. Appellant
does not complain of his exemption from these responsibilities and,
indeed, he does
not even now seek custody of his child. In contrast,
legal custody of children is, of course, a central aspect of the
marital relationship,
and even a father whose marriage has broken
apart will have borne full responsibility for the rearing of his
children during the
period of the marriage. Under any standard of
review, the State was not foreclosed from recognizing this difference
in the extent
of commitment to the welfare of the child.”

116. The court, having found that the
father has never shouldered any significant responsibility with
respect to the child, concluded
that the relevant laws, as applied in
this case, did not deprive appellant of his asserted rights under the
Due Process and Equal
Protection Clauses.

117. In the case of Caban v. Mohammed,
[1979] USSC 73; 441 US 380 – Supreme Court 1979,the appellant, Abdiel Caban,
challenged the constitutionality of s111 of the New York Domestic
Relations
Law (McKinney 1977), under which two of his natural
children were adopted by their natural mother and stepfather without
his consent.
Section 111 of the New York Domestic Relations Law
(McKinney 1977) provides in part that:

“consent to adoption shall be
required as follows: . . . (b) Of the parents or surviving parent,
whether adult or infant, of
a child born in wedlock; [and] (c) Of the
mother, whether adult or infant, of a child born out of wedlock. . .
.”

118. The Supreme Court found the
statute to be unconstitutional, as the distinction it invariably
makes between the rights of unmarried
mothers and the rights of
unmarried fathers had not been shown to be substantially related to
an important state interest. The
court took the view that
gender-based distinctions “must serve important governmental
objectives and must be substantially
related to achievement of those
objectives” [at 388] in order to withstand judicial scrutiny
under the Equal Protection Clause:

“Even if unwed mothers as a class
were closer than unwed fathers to their newborn infants, this
generalization concerning
parent-child relations would become less
acceptable as a basis for legislative distinctions as the age of the
child increased.
The present case demonstrates that an unwed father
may have a relationship with his children fully comparable to that of
the mother.
Appellant Caban, appellee Maria Mohammed, and their two
children lived together as a natural family for several years. As
members
of this family, both mother and father participated in the
care and support of their children.[7] There is no reason to believe

that the Caban children—aged 4 and 6 at the time of the
adoption proceedings—had a relationship with their mother
unrivaled by the affection and concern of their father. We reject,
therefore, the claim that the broad, gender-based distinction
of §
111 is required by any universal difference between maternal and
paternal relations at every phase of a child’s development.”
At
389.

119. The Supreme Court held that the
effect of New York’s classification was to discriminate against unwed
fathers even when their
identity was known and they had manifested a
significant paternal interest in the child.

120. The court observed that:

“The facts of this case
illustrate the harshness of classifying unwed fathers as being
invariably less qualified and entitled
than mothers to exercise a
concerned judgment as to the fate of their children. Section 111 both
excludes some loving fathers from
full participation in the decision
whether their children will be adopted and, at the same time, enables
some alienated mothers
arbitrarily to cut off the paternal rights of
fathers. We conclude that this undifferentiated distinction between
unwed mothers
and unwed fathers, applicable in all circumstances
where adoption of a child of theirs is at issue, does not bear a
substantial
relationship to the State’s asserted interests.”
(At 394).

121. In Lehr v. Robertson, [1983] USSC 153; 463 US 248 –
Supreme Court 1983, the question presented was whether New York has
sufficiently protected an unmarried father’s inchoate
relationship
with a child whom he has never supported and rarely seen in the two
years since her birth. The appellant, Jonathan
Lehr, claimed that the
Due Process and Equal Protection Clauses of the Fourteenth Amendment,
as interpreted in Stanley v. Illinois,
and Caban v. Mohammed, gave
him an absolute right to notice and an opportunity to be heard before
the child may be adopted. (See
Michael J Higdon (2014) “Marginalized
fathers and demonized mothers: A feminist look at the reproductive
freedom of unmarried
men” Legal Studies Research Paper Series,
Research Paper #234, 20).

122. The court disagreed. The State of
New York maintains a putative father registry. The court took the
view that a man who files
with that registry demonstrates his intent
to claim paternity of a child born out of wedlock and is therefore
entitled to receive
notice of any proceeding to adopt that child.
Before entering Jessica’s adoption order, the Ulster County Family
Court had the
putative father registry examined. Although appellant
claimed to be Jessica’s natural father, he had not entered his name
in the
registry.

In addition to the persons whose names
are listed on the putative father registry, New York law requires
that notice of an adoption
proceeding be given to several other
classes of possible fathers of children born out of wedlock —
those who have been adjudicated
to be the father, those who have been
identified as the father on the child’s birth certificate, those who
live openly with the
child and the child’s mother and who hold
themselves out to be the father, those who have been identified as
the father by the
mother in a sworn written statement, and those who
were married to the child’s mother before the child was six months
old. Appellant
admittedly was not a member of any of those classes.
He had lived with appellee prior to Jessica’s birth and visited her
in the
hospital when Jessica was born, but his name does not appear
on Jessica’s birth certificate. He did not live with appellee or
Jessica
after Jessica’s birth, he has never provided them with any
financial support, and he has never offered to marry appellee.

123. The court took a strong position
upon this lack of parental interest:

The difference between the developed
parent-child relationship that was implicated in Stanley and Caban,
and the potential relationship
involved in Quilloin and this case, is
both clear and significant. When an unwed father demonstrates a full
commitment to the responsibilities
of parenthood by “com[ing]
forward to participate in the rearing of his child,” Caban, 441
U. S., at 392, his interest
in personal contact with his child
acquires substantial protection under the Due Process Clause. At that
point it may be said that
he “act[s] as a father toward his
children.” Id., at 389, n. 7. But the mere existence of a
biological link does not
merit equivalent constitutional protection.
The actions of judges neither create nor sever genetic bonds. “[T]he
importance
of the familial relationship, to the individuals involved
and to the society, stems from the emotional attachments that derive
from the intimacy of daily association, and from the role it plays in
`promot[ing] a way of life’ through the instruction of children
. . .
as well as from the fact of blood relationship.” Smith v.
Organization of Foster Families for Equality and Reform, [1977] USSC 104; 431 U. S.
816, 844 (1977) (quoting Wisconsin v. Yoder, [1972] USSC 102; 406 U. S. 205, 231-233
(1972)).

124. The above case underscored the
significance of the biological connection, being that it offers the
natural father an opportunity
that no other male possesses to develop
a relationship with his offspring. If he exploits that opportunity
and accepts some measure
of responsibility for the child’s future, he
may enjoy the blessings of the parent-child relationship and make
uniquely valuable
contributions to the child’s development. And no
court ought to deny the development of that relationship where the
unwed father
has consistently shown that he cares for his child.

125. It seems plain from the above that
in terms of the US jurisprudence, constitutional protection for a
parent’s right to maintain
a relationship with his or her child does
not derive from some kind of parental possessory right existing in a
vacuum. Rather,
the protection is inextricably intertwined with the
parent’s constant responsibility to care for the child.

126. In each case it is important that
the father must also have displayed, at the earliest possible moment,
an interest in taking
responsibility for his child, and he must have
acted upon that interest in a timely manner. Essentially, he must
establish a relationship
with the child to the greatest extent
possible under the circumstances. It is this parent-child bond and
nothing less that, according
to the court, that deserves
constitutional protection. (See Dwelle cited above at 215)

127. The parent’s constitutional right
to be with, provide for, and control their child is closely linked to
the parent’s duty to
provide for the child’s physical and emotional
needs. According to Buchanan, the term:

“custody” has been used to
describe this intermingling of rights and duties. In her analysis,
she concludes: “that
the Constitution particularly protects the
custodial rights of biological parents who perform custodial
responsibilities has been
stated as a fact and explained in terms of
tradition and natural right. That the Constitution continues to
protect parent-child
relationships even when parents no longer
perform custodial responsibilities also has been stated as a fact and
has been explained
as a recognition that the emotional attachments
that arise during a custodial relationship are worthy of protection
even when the
custodial aspect of the relationship no longer exists.
Thus, parents who live with, provide for, and form emotional
attachments
with their children perform the social function of caring
for children, and their interests are worth protecting. Under this
analysis,
unwed fathers who have custodial relationships with their
children are parents whose interests are worth protecting.”
(See
Buchanan above at 323.)

128. According to Shanley, the Supreme
Court was correct to ground parental rights in a combination of
biology and nurture. In order
to determine whether an unmarried
biological father has the right to consent to the adoption of his
offspring, the law should look
at his actions with respect to both
the potential child and the mother during her pregnancy as well as
after the birth. Parental
rights cannot be decided without
considering the complex web of relationships involved in procreative
activity. (See Mary L Shanley
(1995) “Unwed fathers’
rights, adoption and sex equality: Gender-Neutrality and the
Perpetuation of Patriarchy”
95(1) Columbia Law Review 60, 77.)

129. It is only when the court
considers the complex web of relationships involved and the level of
the biological father’s
commitment that it can determine where
the best interest of the child lies.

130. I turn to the relevant
jurisprudence of our neighbour, South Africa – a country which,
like Botswana, is a constitutional
democracy.

South Africa

131. In the South African case of
Fraser v. Children’s Court Pretoria North and Others [1997] ZACC 1the
question of the constitutionality
of Section 18(4)(d) of the Child
Care Act 74 of 1983 was referred for determination to the
Constitutional Court in terms of Section
102(1) of the Constitution.
Section 18(4)(d) of the Child Care Act 74 of 1983 provided that a
children’s court, to which
application for an order of adoption
is made, shall not grant the application unless it is satisfied that
consent to the adoption
has been given by both parents of the child,
or, if the child is illegitimate, by the mother of the child only.

132. The court held that the
discrimination entailed by the section could not be justified. It
unfairly discriminated against the
fathers of certain children on the
basis of their gender or their marital status. Every mother was given
an automatic right to
withhold her consent to the adoption of the
child while this right was denied to every unmarried father. An order
declaring the
section unconstitutional was made and an order was made
to allow the section to survive pending correction by parliament.

133. Mahomed DP pointed out that:

“The effect of section 18(4)(d)
of the Act is that the consent of the father would, subject to
section 19, be necessary in
every case where he is or has been
married to the mother of the child and never necessary in the case of
fathers who have not been
so married. In the context of certain laws
there would often be some historical and logical justification for
discriminating between
married and unmarried persons and the
protection of the institution of marriage is a legitimate area for
the law to concern itself
with. But in the context of an adoption
statute where the real concern of the law is whether an order for the
adoption of the child
is justified, a right to veto the adoption
based on the marital status of the parent could lead to very unfair
anomalies. The consent
of a father, who after his formal marriage to
the mother of the child concerned, has shown not the slightest
interest in the development
and support of the child would, subject
to Section 19, always be necessary. Conversely a father who has not
concluded a formal
ceremony of marriage with the mother of the child
but who has been involved in a stable relationship with the mother
over a decade
and has shown a real interest in the nurturing and
development of the child, would not be entitled to insist that his
consent to
the adoption of the child is necessary. The consent of the
mother only would, subject to Section 19, be necessary even if the
only
reason why the relationship between the couple has not been
solemnised through a marriage is that the mother refuses to go
through
such a ceremony, either on the ground that she has some
principled objection to formal marriages or on some other ground.
[Para
26].

… A child born out of a union
which has never been formalised by marriage often falls into the
broad area between the two
extremes expressed by the case where he or
she is so young as to make the interests of the mother and the child
in the bonding
relationship obvious and a child who is so old and
mature and whose relationship with the father is so close and bonded
as to make
protection of the father-child relationship equally
obvious. There is a vast area between such anomalies which needs to
be addressed
by a nuanced and balanced consideration of a society in
which the factual demographic picture and parental relationships are
often
quite different from those upon which “first world”
western societies are premised; by having regard to the fact that
the
interest of the child is not a separate interest which can
realistically be separated from the parental right to develop and

enjoy close relationships with a child and by the societal interest
in recognising and seeking to accommodate both.” [Para
29]

A synopsis of relevant local
jurisprudence

134. In the olden days when the law was
retrogressive, it was the position of our common law that a father of
a child born out of
wedlock has no relationship to his/her father.
The law has since developed and now frowns upon the notion that a
child may not
have a legally recognizable relationship with a
biological father who is not married to the mother.

135. In the case of Motlogelwa v Khan
2006 2 BLR 147, at page 149 F-G, Molokomme J (as she then was)
expressed the position of yesteryear as follows:

“…the Roman Dutch law
position espoused in a number of South African decisions….is
well known and in its crudest
form, it is that as a general rule,
Roman Dutch law does not recognize a relationship between a child
born out of wedlock and its
father, except in so far as his
obligation to maintain the child.”

136. This court and indeed the highest
court in the land, (Court of Appeal) has of recent (although the
circumstances are not on
all fours with the present) had occasion to
deal with a case involving adoption (See Mey v July (CACGB- 134-13,
High Court Case
No. UAHGB-000072-12)

137. In the case of Mey the respondent
Joshua July, the biological father of the little girl referred to as
Angel, improperly obtained
a High Court order declaring Angel to be a
child in need of care when he discovered that her adoptive mother (a
South African national)
sought to leave the country with her.

138. The child was removed from her
home and placed amongst strangers at Child Line Botswana. The
respondent was then given supervised
access to the child, privileges
that he had not previously enjoyed since he had no ongoing
interaction with the child prior to
that time. As a result of his
appeals to the court, the little girl known as Angel was removed from
her parents and her brother.
Yet, as Lesetedi JA rightly pointed out:
“it was never shown at any stage that these interim orders and
the removal of the
child from its legal parent or her guardian was in
the best interest of the minor child.” [Para 47].

139. It is noteworthy that Lesetedi JA
mentions the lack of a bond or relationship between the respondent
and his biological daughter.

“[I]t is evident from the
respondent’s affidavit … that he had no bond with Angel
who was now four years old.
He had only seen the child once or twice
in its first year of life but had not seen the child at any stage
thereafter. …
He had at no time assisted the appellant in any
way in upbringing the child… he never took any legal steps to
assert a right
of access to the child until the last moment when he
heard that the appellant was relocating from the jurisdiction.”
[Para
13].

140. In terms of his application for
the rescission of the adoption, the court correctly pointed out that
Mr July would have had
to show that he was a parent of the child as
contemplated under Section 8(1)(a) of the [Adoption] Act and
secondly, that the order
of the adoption should not have been made
without his consent.

141. It must be pointed out that, the
Adoption Act did not require his consent, so that the second
requirement could not be shown.
Since he based his rights on the
Children’s Act No. 8 of 2009, he still had to show that he was
a parent whose consent was
required in terms of that Act.

142. The court pointed out that:

“Under section 121 of the current
Children’s Act, the repealed Act is deemed for those purposes to have
been valid and to
continue until the adoption was finalized. Under
the repealed Act there is no definition of a parent and in terms of
the common
law the consent of the father of a child born out of
wedlock has no parental rights over that child. The new Children’s
Act No.
8 of 2009 does not in any of its provisions require the
consent of the biological father of a child born out of wedlock to be
a
condition precedent to the adoption of the child. The Act gives
such father greater rights of involvement in the child’s upbringing

and outlines in detail his duties. To that extent it does not
conflict with or override the Adoption Act. What flows from the
Children’s Act of 2009 is that the father would now expect to be
consulted if he had hitherto involved himself in the life of the

child. His views and the nature and extent of his involvement in the
child’s welfare and upbringing would then be factors to be
taken into
account in deciding the totality of every relevant consideration
whether the adoption would be in the child’s best interests.”

[Para 61, emphasis added].

143. The court determined that the only
recourse (aside from showing that he had locus standi in terms of law
to bring the rescission
of adoption application if his consent were
necessary before the adoption order was made) would have been for the
respondent to
set out why the adoption was to the detriment of the
child. None of these averments were made in the affidavits and for
that reason
alone he ought to have been non-suited to seek the
reliefs he sought.

144. The court ruled that in all
matters involving the welfare of minor children,

“the court should always be
astute to ensure that there are always compelling reasons, not mere
unsupported allegations by
a party to the litigation who has not yet
established a prima facie right to custody of the child, advanced to
interrupt the child’s
present situation or circumstance. A
matter such as the present requires to be approached with caution to
avoid the abuse of the
judicial process by a litigant to gain an
unfair advantage over another party for reasons which have little to
do with the best
interests of the minor child.” [Para 77]

145. It should be plain beyond doubt
from reading the judgment of the Court of Appeal that the matter of
parental interest or involvement
looms large. This is also clear
from the closing remarks of the court.

146. In closing the ruling, the court
referred once again to the lack of parental interest that the
respondent had shown prior to
launching the “purported appeal”:

“for three years the respondent
remained supine and made no attempt to assert his legal rights to
have access to and bond
with the minor child. This was the time at
which the child was opening its eyes to the world, and for the
respondent to later after
the passage of several years seek to assert
his rights on urgency, thereby disrupting the child’s ordered
life for his own
convenience without demonstrating that the child’s
then situation was anything but well ordered and stable, was
opportunistic
and an abuse of judicial process.”[Para 78]

147. In this way, the Court of Appeal
once more underscored the primacy of the best interests of the child.
However, the court also
introduced the possibility for an unmarried
father to assert and obtain recognition of his legal rights as a
parent. In essence,
the court relies upon the enhanced role awarded
to fathers under the Children Act of 2009, which would not have been
applicable
to the respondent whose matter commenced prior to the Act.

The best interests of the child

148. The supremacy of this standard has
been clearly established in the legislation and in judicial decisions
concerning children,
including those born out of wedlock.

149. In Macheme v Ndlovu (CACLB-035/08)
[2009] BWCA 49, the Court of Appeal upheld the judgment of this court
in Dumisani Ndlovu v Letsile Macheme [2008] 3 BLR 230 HC, finding the
respondent entitled to certain periods of access to Lorako Macheme, a
male child born on 10 April 2003, of whom
the appellant was the
mother and the respondent, the father. Lord Coulsfield JA (with
Tebbutt JP and Foxcroft JA concurring) held
that

“the primary standard to be
applied in all questions of guardianship of or access to children,
whether their parents are married
or unmarried, is that of the best
interests of the child.”

150. In Mfundisi v. Kabelo, 2003 (2)
BLR 129 (HC) Chatikobo J held:

“The predominant approach, shared
by all the cases, seems to be that the illegitimacy of the child is
not the compelling reason
for denying access by its father. Rather it
is the interest of the child which must predominate”.

151. The Children Act stipulates
guiding principles to be used in determining the best interests of
the child. These principles
include taking into account the capacity
of the child’s parents to care for and protect the child; and,
the importance of
stability and the likely effect on the child of any
change or disruption in the child’s circumstances. (see Section
6)

152. Furthermore, no decision or action
shall be taken that would result in the discrimination against any
child on any status,
including family; and, the parents of a child
have the primary responsibility of safeguarding and promoting the
child’s well-being.
(See Section 7)

153. Having regard to all the above,
the stage has now arisen to consider whether the applicant’s
complaint that he is being
discriminated on the basis of sex or his
marital status has any merit.

154. On the undisputed facts of this
matter, outlined earlier in some detail, it is plain that the
applicant had cultivated a close
relationship with his child and
contributed substantially to her education and general welfare. His
interest in the welfare of
his child was not sporadic, but consistent
over time. He has in the past sought custody of the child. In a
nutshell his interest
and love for his child is not open to doubt.

155. On the evidence, the 3rd
Respondent has in the past indicated a wish to end the life of the
2nd Respondent. Clearly, it is
not in the best interest of the 2nd
Respondent to be adopted by the 3rd Respondent.

156. To suggest that the applicant, as
the father of the child, 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 the human dignity of the
applicant. It is
so heart-wrenching that it cannot find support in
the mind of any reasonable court, properly directing itself.

157. The position of the Attorney
General is that Section 15(3) is not violated because the applicant
is simply complaining that
he is being discriminated by virtue of
being unmarried, as opposed to a married man. Consequently, it is
argued that he cannot
complain that he is being discriminated on the
basis of sex or marital status.

158. Section 15(3) lists grounds upon
which it is not permissible to discriminate. These grounds are race,
tribe, place of origin,
political opinions, colour or creed.

159. I pause here to ask, with
reference to the listed grounds, upon which it is not permissible to
discriminate, whether, the absence
of such other grounds as are found
in most recent Constitutions such as gender, health status and
disability mean that it is permissible
to discriminate on such
grounds?

160. In the case of Attorney-General v
Dow Appeal Court 1994 (6) BCLR 1) Amissah JP suggests general
guidelines for expanding these categories:

“If the categories of groups or
classes mentioned in section 15(3) are but examples, where does one
draw the line as to the
categories to be included? Of course,
treatment to different sexes based on biological differences cannot
be taken as discrimination
in the sense that section 15(3)
proscribes. With regard to the classes which are protected, it would
be wrong to lay down any hard
and fast rules. The vulnerable classes
identified in sections 3 and 15 are well known. I would add that not
only the classes mentioned
in the definition in section 15(3), but,
for example, the class also mentioned in subsection (4)(d), where it
speaks of “community”
in addition to “race”
and “tribe” have to be taken as vulnerable. Civilised
society requires that different
treatment should not be given to
people wholly or mainly on the ground of membership of the designated
classes or groups…. The
only general criterion which could be put
forward to identify the classes or groups is what to the right
thinking man is outrageous
treatment only or mainly because of
membership of that class or group and what the comity of nations has
come to adopt as unacceptable
behaviour.”

161. Inspired and fortified by the
above remarks, the Industrial Court in the case of Diau, cited supra,
opined that:

“In my mind, the grounds listed
in terms of section 15 (3) are not exhaustive. A closer
interrogation of the said grounds
show one common feature –
they outlaw discrimination on grounds that are offensive to human
dignity and/or on grounds that
are irrational…”

162. It is clear from the above, that
Section 15(3) 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 other grounds in accordance with the evolving norms of society
and the values
of international human rights regime.

163. Undertaking the analysis whether
the adoption unduly discriminates against unwed fathers, the court
would need to be cautious
and cognitive of the very real differences
that exist in the lived realities of women and men as parents.
Granting formal equality
to unmarried men that expands their role
over the decision-making process, concerning their biological
children, would have to
be achieved in such a manner as to avoid
further burdening women, who in practice, and according to research,
bear the brunt of
child-rearing duties.

164. An argument has been raised on the
grounds of the differentiation between biological mothers and
biological fathers in the
relevant laws. The Attorney General sought
to rely upon the terms of customary law, whereby a child born out of
wedlock belongs
to the mother’s family and argued that this is
a position that was also applicable under common law, with parental
rights
and responsibilities over a child being acquired by birth in
lawful wedlock.

165. The above position reflects the
common law, whereby the father of an illegitimate child had no rights
regarding his offspring,
and the child lacked the rights normally
bestowed upon a legitimate child, such as the right to inherit from
his parents. This
argument is answered eloquently in the Dow case,
cited supra, per Amissah JP.

166. It is apposite to let Amissah JP
speak for himself (even from the grave – may his soul rest in
peace):

167. Amissah JP in the Dow case
observed:

“Our attention has been drawn to
the patrilineal customs and traditions of the Botswana people to
show, I believe, that it
was proper for Parliament to legislate to
preserve or advance such customs and traditions. Custom and
tradition have never been
static. Even then, they have always
yielded to express legislation. Custom and tradition must a
fortiori, and from what I have
already said about the pre-eminence of
the Constitution, yield to the Constitution of Botswana. A
constitutional guarantee cannot
be overridden by custom. Of course,
the custom will as far as possible be read so as to conform with the
Constitution. But where
this is impossible, it is custom not the
Constitution which must go.”

168. The above perspective was recently
reinforced by the Court of Appeal in the case of Ramantele, cited
supra, when the court
stated that:

“It is axiomatic to state that
customary law is not static. It develops and modernizes with the
times, harsh and inhumane
aspects of custom being discarded as time
goes on; more liberal and flexible aspects consistent with the
society’s changing
ethos being retained and probably being
continuously modified on a case by case basis or at the instance of
the traditional leadership
to keep pace with the times … For
after all what is customary law but a set of rules developed by
society to address issues
around certain values which protect the
community’s social fabric and cohesion. (Para 77)

169. It is clear from the above
quotations that 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.

170. The court further held that –
irrespective of the constitutional provisions- for a customary law to
achieve the status
of law, it must be compatible with morality,
humanity, and natural justice, as set out in the Customary Law Act.
The customary
law must accordingly comply with any notion of
fairness, equity and good conscience. (See paras 49-50)

171. The court concluded that there is
no rational and justifiable basis for sticking to the narrow norms of
days gone by when such
norms go against current value systems. (Para
80)

172. The above statements apply with
equal force to this matter. The customary rule relied upon by the
Attorney General offends
any notion of fairness, equality and good
conscience when measured against the contemporary norms.

173. In determining whether the
applicant has been discriminated against or not, this court must bear
in mind that Section 15(4)
contains a claw back clause specifying
that the protections of Section 15 do not extend to any law that
makes provision with respect
to adoption or other matters of personal
law.

174. The Attorney General has placed
reliance on the above clause as it has done in many other similar
cases that have come before
this court, arguing that in this
instance, we are dealing with adoption, one of those instances
specifically prohibited by Section
15 (4) (c).

175. Fortunately, the Court of Appeal
has indicated, in clear terms, that the derogations listed in Section
15 are not beyond reproach
and have to be tested against the
parameters set out in the umbrella provision of Section 3. Lesetedi
JA reiterated the holding
in Dow that a derogation as contained in
Section 15(4) does not permit unchecked discrimination which is not
consistent with the
core values of the constitution, stating:

“Where there is a derogation the
court must closely scrutinize it, give it a strict and narrow
interpretation and test whether
such discrimination is justifiable
having regard to the exceptions contained in Section 3 of the
Constitution. It is only when
the court is satisfied that a
discrimination passes that test that the court can find that the
derogation is constitutionally permissible.

… the derogations contained in
Section 15(4) of the Constitution are not unchecked. They must be
rational and justifiable either
as being intended to ensure that the
rights and freedoms of any individual do not prejudice the rights and
freedoms of others or
as being in the public interest.” (See
Ramantele case, paras 71-72)

176. I agree entirely with the above
remarks, which constitute the law in Botswana. In addition, I am of
the considered view that
a contextual or purposive reading of Section
15 (4) is capable of two interpretations and both interpretations are
consistent with
the actual grammar used in the construction of
Section 15 (4). The first and literal interpretation is that Section
15 (4) is a
blanket licence for laws to discriminate on matters to do
with adoption, marriage and other matters of personal law. The second

interpretation is that if a litigant can show that the discrimination
he/she complains of is not in the public interest and that
not being
discriminated against would not harm the interest of other persons,
the court will construe Section 15(4) strictly or
restrictively in a
manner that gives effect to the underlying values and purpose of the
Constitution.

177. This court notes in passing that
the attitude or standpoint of the Attorney General towards Section 15
(4) has not changed
since Dow and even with the recent decision of
the Court of Appeal in Ramantele. Their defence of Section 15 (4)
appears not to
be informed by the development in the case law. In
this case, there was no attempt to persuade the court why the holding
in the
latest case of Ramantele should not apply. It seems to me
that the Attorney General simply does not want to listen to what the

courts are saying.

178. In my respectful view, the equal
protection clause, as embodied in the United States Declaration of
Independence, the United
States Constitution and other international
human rights instruments that influenced our Constitution, was
designed to impose upon
states positive duty to supply protection to
all persons in their inalienable enjoyment of human rights.

179. Section 3 or the equal protection
clause, to which Section 15(4) is subordinate to, is closely
associated with the denial that
differences in colour, creed, sex,
marital status are relevant in the way in which humanity must be
treated. These factors are
irrelevant accidents in the face of our
common humanity.

180. It is perhaps important to
emphasise that Section 3, which Justice Lesetedi refers to as the
umbrella provision, is first and
foremost an equality provision. Its
primary aim is the promotion of a society in which all are secure in
the knowledge that they
are recognised at law as human beings,
equally deserving of concern, respect and consideration. A Section 3
and 15 analysis must
focus on uncovering and understanding the
negative impacts of legislative distinction or omission, whatever the
case may be, on
the affected individual or group. Critical in such
an inquiry is the extent to which the less favourable treatment
affects the
human dignity and personhood of the aggrieved party.

181. The attempt to understand the
relationship between Section 3 and 15 is complicated by the fact that
many jurists and judges
still refuse or are reluctant to accept that
all rights are interdependent, indivisible and universal. Proceeding
from this vintage
point, it becomes easy to understand why Section 15
(4), which is a derogation clause must be construed strictly. This
is what
the court in Moses Magaya v Mary Magaya1999 (1) ZLR 100 could
have done in order to protect rights that were at stake, when dealing

with a provision similar to Section 15 (4) referred to above.

182. The facts in the case of Magaya
may be stated briefly. When Shonhiwa Magaya died without a Will, a
local court in Zimababwe
designated his eldest child, Venia Magaya,
heir to the estate. This aggrieved her younger half brother, who
contended that in
terms of African customary law, a woman cannot be
appointed as heir to her father’s estate when there is a man in
the family
who is entitled to be heir. The magistrate court,
(sitting in an appellate capacity) agreed and Ms Magaya’s
heirship was
reversed. The newly appointed heir took his position as
head of the household and removed Ms Magaya from her family home. An
appeal was lodged with the Supreme Court of Zimbabwe which upheld the
derogation clause that saved discriminatory customary law
in matters
of personal law.

183. The case triggered widespread
criticism in some legal circles on the basis that it violated Ms
Magaya’s right to equality,
fundamental issues of fairness and
international norms.

184. Speaking for myself, I do not
agree that the decision the court took was the only outcome the court
could have taken. Adjudication
of equality cases requires a delicate
balancing act. It must be approached from the perspective that human
dignity is the core
right that informs the bill of rights of any
country, whether or not that Constitution expressly provides for the
right to human
dignity or not. This is so because any bill of rights
implicitly flows from the right to human dignity. Secondly, the
balancing
act should take into account the truism that human rights
are interdependent, indivisible and universal. No single provision
should
be interpreted in isolation from others. Had the Magaya court
properly factored the above considerations it could not have come
to
a conclusion that in effect suggested that women are less human than
men.

185. A recent decision by the Lesotho
Court of Appeal in the case of Masupha v The Senior Resident
Magistrate for the Surbodinate
Court of Berea and Others, Court of
Appeal (CIV) 29/2013, also adopted the Magaya logic when dealing with
a derogatory clause similar
to Section 15 (4) of the Botswana
Constitution and repudiated the reasoning of the Botswana judgments
such as the Dow decision
that interpreted the above section
restrictively.

186. In that case, the Appellant, an
unmarried woman, is the daughter of late Principal Chief of Ha
“Mamathe, Thupa-Kubu
and Jorotane.” When her father died
he was succeeded by her mother until her death in December 2008. In
February 2009, the
minor son and only issue of the subsequent
marriage entered into by the appellant’s late father, was named
as successor to
the chieftainship and a regent was appointed pending
his majority. The appellant challenged her exclusion on the ground
that it
was based on Section 10 of the Chieftainship Act which was
unconstitutional in that it disentitled her to succeed solely on the

ground that she was a female. Although the Court held that Section 18
(4) c, which is more or less similar to the Botswana’s
Section
15 (4) above, had to be “strictly construed” because it
was a limitation provision. It held that the limitations
under
Section 18 (including Section 18(4)c ) are “designed to ensure
absence of prejudice to, inter alia, the public interest.
Accordingly
the Constitution itself affirmatively disposes the question whether s
18(4) c constitutes a permissible limitation
on the s 18 right….In
other words, the public interest issue is decided, in the instances
where there are limitations, by
the Constitution, not by construing
subservient legislation. I would accordingly respectfully disagree
with those judgments relied
upon by counsel for the first amicus in
which Botswana courts have appeared to construe provisions equivalent
to the Lesotho sections
4 (1) and 18 (4) c as requiring that a
limitation be measured against a proviso to assess whether it is in
the public interest.”

187. It appears to me, with the
greatest of respect, that it was possible for the courts in Magaya
and Musupha to have interpreted
the derogatory clause restrictively
and in the process affirm that discrimination on the basis of gender
or sex is impermissible
as it strikes at the heart of the right to
human dignity – suggesting in effect that women are inferior to men.
The right to
dignity is the fundamental reason why there is a right
to equality and/or freedom from discrimination. In my view,
factoring human
dignity in interpreting the derogatory clause is
intellectually and jurisprudentially more satisfactory.

188. Section 3 of the Constitution,
which embodies the equal protection clause, is a reminder to
Parliament that as it enacts laws
and makes classifications, or
imposes burdens or disadvantages, such should be justifiable and
related to the purpose of law.
It is a reminder to the legislature
to guard against inequality of purpose.

Sex Discrimination

189. In simple terms, sex
discrimination refers to less favourable treatment on the basis of
sex. Sex is a biological term. It
refers to biological and physical
differences between men and women. (See Iain Currie and Johan de
Waal, The Bill of Rights Handbook,
(2005) Juta, p 250). Gender is a
social term. It refers to ascribed social and cultural male and
female roles. Although closely
linked, the two terms do not mean the
same thing.

190. In this case, it seems to me that
the applicant is treated less favourably by the Adoption of Children
Act Cap 28:01 than a
woman, the 1st Respondent, because of
prejudicial or stereotypical cultural views that a child born out of
wedlock belongs to the
mother and 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.

191. The marital presumption that the
husband of the child’s mother is the child’s legal father
is a relic of the English
Common Law. The less favourable treatment
of the father is founded on prejudice, and not on any reason that can
stand constitutional
scrutiny in the contemporary society.

192. In my view, it is unfair gender
discrimination to require consent of a mother, but not of a father to
adoption of a child born
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 on socially constructed roles has the potential to impair
his fundamental dignity
as a person and is therefore impermissible.

193. It seems to me that they may still
be some people in the legal fraternity, and the broader public, that
are reluctant to accept
or internalise the full import of Section 3
of our Constitution, necessitating that our courts should be untiring
in their fidelity
to the Constitution. Culture is important, to a
people, but the one that is subversive to the constitutional values
and ideals,
we hold dear as a people, must be discarded without
flinching.

194. To this extent, I am in total
agreement with the words of Lord Atkin, writing in a different
context, that:

“When these ghosts of the past
stand in the path of justice clanking their medieval chains the
proper course for the Judge
is to pass through them undeterred”
(Lord Atkin in United and Australia Ltd v Barclays Bank Ltd 1941 AC1,
29)

Marital status

195. The prohibition to discriminate on
the basis of marital status is aimed at removing the historical
privilege of the position
of a mother of a child born out of wedlock.

196. This court is persuaded that
Section 4 (2) (d) (i) is unconstitutional, as the distinction it
makes between unwed mothers and
fathers has not been shown to serve
any legitimate purpose or interest. Differentials based on gender
and/or marital status in
order to withstand judicial scrutiny under
Section 3, as read with Section 15 of our Constitution, must be
shown, by those who
support same, to serve important governmental
purpose.

197. This court has considered the
argument of the Attorney General that the denial of parental rights
to the unwed father was some
form of sanction for having violated,
not only the lady in question, but for also disrespecting the
mother’s family. In
this era, where what matters most is the
best interests of the child, the reason advanced by the Attorney
General can hardly be
a valid governmental purpose.

198. I am satisfied that the effect of
Section 4 (2) (d) (i) is to discriminate against unwed fathers even
when their identity is
known and have shown commitment to the welfare
of the child. The message of the section sought to be impugned that
unwed fathers
are less qualified and entitled than mothers to
exercise judgment, as to the fate of their children, cannot find
support in a modern
society, whose bill of rights is inspired by the
right to human dignity and equality.

199. In my considered view, the
father’s interest in the companionship and generally to take
care of his child is cognizable
and substantial and it would not make
sense for the law to regard such interest as inconsequential, when it
has a direct bearing
on the interest of a child.

200. The further effect of the section
sought to be impugned is that the consent of the father is necessary
where he is married
and not necessary where he is not – and the
underlying purpose, for such a stand point, that potentially has
grave consequences
for the best interest of the child, has not been
shown to be necessary or reasonable.

201. In my mind, to exclude a father,
such as the applicant, who has shown admirable commitment to the
welfare of the child, is
unreasonable. It completely undermines the
significance of the biological connection, being that it offers the
natural father
an opportunity that no other male possesses to develop
a relationship with his child.

202. In my mind, there appears to be no
justification why the law (the Adoption Act) should give every mother
an automatic right
to withhold her consent to the adoption of the
child while this right is denied to every unmarried father. In my
judgment, this
is absurd.

203. Having regard to all I have said,
I have no hesitation whatsoever in holding that Section 4(2)(d)(i)
discriminates against
the applicant on the basis of gender and
marital status and that such is constitutionally impermissible.

Inhuman and degrading treatment

204. The concept of inhuman and
degrading treatment is generally used to capture levels of human
suffering that do not amount to
torture. Treatment or punishment
amounts to cruel, inhuman and degrading treatment when it involves
mental and physical ill-treatment
that has been intentionally
inflicted by, or with the consent or acquiescence of, the state
authorities.Exposing a person to conditions
reasonably believed to
constitute ill-treatment will entail responsibility for its
infliction. Degrading treatment may involve
pain or suffering less
severe than for torture or cruel or inhuman treatment and will
usually involve humiliation and debasement
of the victim. The
essential elements which constitute ill-treatment not amounting to
torture would therefore be reduced to:

• Intentional exposure to
significant mental or physical pain or suffering;

• By or with the consent or
acquiescence of the state authorities.

205. It is often difficult to identify
the exact boundaries between the different forms of ill-treatment as
this requires an assessment
about degrees of suffering that may
depend on the particular circumstances of the case and the
characteristics of the particular
victim.

206. In some cases, certain forms of
ill-treatment or certain aspects of detention which would not
constitute torture on their own
may do so in combination with each
other.

207. In international law,
ill-treatment is prohibited even where the treatment does not have
the purposive element or, as far as
degrading treatment is concerned,
is not considered severe enough (in legal terms) to amount to
torture, it may still amount to
prohibited ill-treatment.” (See
Physicians for Human Rights (2010) “PHR Toolkits: Cruel Inhuman
& Degrading Treatment
& Punishment (CID)”)

208. The courts in Botswana have dealt
with cases on this ground, mainly within the context of imprisonment
and the death penalty,
and it has been established that: “what
constitutes inhuman and degrading punishment has been defined as
punishment which
though not necessarily cruel, does not accord with
human dignity.” (Per Lesetedi AJA in Motlhabane and Another v
S (CLCLB-107-09)
[2010] BWCA 27 (28 January 2010) Para 12.

209. In order to show that he has been
made to suffer “inhuman or degrading punishment or other such
treatment,” the
applicant would have to show that he was
intentionally exposed to mental or physical suffering and that this
intentional exposure
was committed by or with the acquiescence of
state authorities.

210. Having regard to the view I hold
that there is no concrete evidence that the applicant was
intentionally exposed to any form
of suffering with the acquiescence
of state authorities, I must hold as I hereby do, that this ground
has not been established
and must fail.

Right to a fair hearing

211. The applicant further contends
that Section 10 (9) of the Constitution has been violated by
permitting the adoption to proceed,
while he has a court order
permitting him visitation and other privileges and that this would be
tantamount to taking away those
rights without giving him a fair
hearing.

212. I entertain grave doubt whether
Section 10 (9) of the Constitution is implicated. On the pleadings
and the oral submissions
made, I am not persuaded that a case with
respect to the violation of Section 10 (9) of the Constitution has
been made out and
on the basis of the insufficiency of the pleadings
and the evidence, I would dismiss this ground as without merit.

213. What is plain though is that in
terms of the Children Act of 2009, the father would expect to be
consulted, especially, where,
as in this case he is committed to his
child’s welfare, and had been granted visitation rights.

214. In the result, I do not think it
was wise for the applicant to frame his right of a fair hearing in
terms of Section 10 (9)
of the Constitution.

Conclusion

215. After conducting an exhaustive
evaluation of comparative case law and a textual and value based
analysis of the broad constitutional
framework of the republic, in
the context of the particular facts of this case, more particularly
having regard to Section 3 and
15 of the Constitution, it seems clear
to me, that in the view of the Constitution, in the eye of the law,
irrational and unfair
discrimination based on grounds unsupported by
reason, such as gender and marital status is impermissible. The
progressive realisation
of the right to equality and the expansion of
its boundaries, in this republic, has been forged in the crucible of
unrelenting
constitutional litigation. Examples that readily come to
mind are the cases of Dow, Ramantele, and Diau referred to earlier.
The main legacy of the above cases, routinely cited with approval
across the globe, is their contribution to the uniquely Botswana

culture of faith in litigation as a form of enforcing constitutional
rights, and the concomitant willingness of the executive to
comply
with court decisions.

216. The above notwithstanding there is
a limit to what the courts can do. The courts’ interpretative
power cannot be an
effective substitute for legislation. To this
extent, it would assist the courts greatly if the legislature were to
amend Section
15 to list other grounds that are commonly referred to
in international legal instruments such as gender, disability, etc.
Fortunately,
even without the required legislative intervention, in
the manner I have suggested, the jurisprudence of our country is
wedded
to the idea that our Constitution would always have “to
be adopted to the various crises of human affairs”.

217. Of recent Parliament has made
laudable efforts in the direction of discarding discrimination on the
basis of irrational grounds.
Examples include the Children Act of
2009 (which is the soul and mirror of the convention on the Rights of
the Child), the Abolition
of Marital Power Act (s18) and the
Affiliation Proceedings Act.

218. The idea of equal protection of
the laws is fundamental to the concept of democratic citizenship.
With it, every person, to
employ a term used by the Constitution, can
participate in decisions that affect us and our society, and we can
each bear responsibility
for the choices we make – and to this
extent, parents be allowed irrespective of irrelevant distinctions,
such as whether
they are married or not, to carry out their parental
responsibilities to their children. If our courts honour the
provisions of
Section 3 and construe Section 15 restrictively, they
would redeem and/or effect the promise of the Universal Declaration
of Human
Rights and more importantly, of our Constitution, that all
are equal in the eyes of the law.

219. Consequently, when a grave
question, such as the present, confronts the courts, we cannot afford
to blink or equivocate. We
must declare what the law is. When it
appears that an Act of Parliament conflicts with the Constitution, we
must say so without
flinching. It is our sacred duty to enforce the
commands and values of the Constitution. We are sworn to do no less.

220. With respect to costs, I am not
inclined to order costs because effectively there was no opposition
to this application. The
Attorney General only stepped in to assist
the court.

221. In the result, it is ordered that:

1. Section 4 (2) (d) (i) of the
Adoption of Children Act is unconstitutional to the extent that it
does not require the consent
of the father in the adoption of his
illegitimate child in all cases;

2. Any adoption of second respondent
can only be done with the consent of the applicant.

3. Any adoption of the second
respondent without the applicant’s consent is rescinded.

4. There is no order as to costs.

DELIVERED IN OPEN COURT AT GABORONE

THIS DAY 2ND OF FEBRUARY 2015

OBK DINGAKE

JUDGE

NDADI LAW FIRM – APPLICANT’S
ATTORNEYS

ATTORNEY GENERAL’S CHAMBERS –
RESPONDENTS ATTORNEYS

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