For readers accustomed to the political flavour of this website, this is a different dish altogether. Occasionally, I like to tackle important social issues, as and when they arise.This is one such occasion. The big issue around this time last year was the suspended Prosecutor-General’s reckless statements on child marriage and the age of consent. On this occasion, the big issue is over the rights of children born out of wedlock, prompted by a decision of the High Court.
The Herald newspaper of 26th July 2016 had a story of a woman who tried, unsuccessfully, to register her child’s birth in the name of alleged father, who is deceased. The woman failed to get help from the alleged father’s parents or near relatives. In the absence of that assistance, the Registrar General refused to register the child’s birth. The women then approached the High Court challenging the constitutionality of the decision. She argued that the laws preventing her to register the child in the dead father’s name were unconstitutional. However, the High Court dismissed her application, holding that the law was perfectly reasonable.
The case deals with an important social issue and highlights serious problems with the Births and Deaths Registration Act, which is in need of updating. With all due respect, the High Court erred in its interpretation of the Constitution of Zimbabwe and neglected its duty as the upper guardian of minors, which is supposed to prioritise the best interests of the child. In particular, the High Court failed to protect the child from unfair discrimination. The judge, Mrs Justice Munangati-Manongwa placed far too much emphasis on the protection of the family name at the expense of the interests of the child.
In this analysis, I argue why provisions of the Births and Deaths Registration Act are unconstitutional in that they impose conditions that are unfairly discriminatory against minor children who are born out of wedlock.
Before I proceed, let’s put aside the question as to why a woman would want to insist on her child carrying the name of the father and not hers alone. That is an interesting but separate debate for another day. What is critical here are the rights of the child and whether they are given adequate and equal protection under the law. Section 81 of the Constitution guarantees every child’s right “to be given a name and family name” and to the “prompt provision of a birth certificate”. The right to identity documents is also protected.
The rule against non-discrimination of children born out of wedlock
Section 56(3) of the Constitution is the equality and non-discrimination clause. It provides that no person should be unfairly discriminated on a number of grounds. One of those grounds is that no person should be discriminated on basis of “whether they were born in or out of wedlock”. The full provision reads as follows:
“Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born in or out of wedlock.”
It is against this standard that the requirement for the registration of a child born out of wedlock in the Births and Deaths Registration Act should be judged. Unfortunately, this case seems to have turned on provisions under section 81 of the Constitution, which deals specifically with the rights of children. While they are useful, section 56(3) would have been the most appropriate to judge the constitutionality of provisions of the Births and Deaths Registration Act.
The main question is whether the provisions regulating the registration of births treat a child born out of wedlock in an unfairly discriminatory manner. There is a three-stage test to determine whether the treatment such children is unfairly discriminatory.
- First, there must be a comparison between the manner in which the birth of a child born in wedlock and a child born out of wedlock are registered. Is there any difference?
- If there is a difference, the second question will be whether the treatment of a child born of wedlock is discriminatory. Section 56(4) of the Constitution provides guidance on what is meant by discrimination. It states that a person is treated in a discriminatory manner “if he or she is subjected directly or indirectly to a condition, restriction or disability to which other people are not subjected”.
- The third question will be whether the discrimination is unfair. Guidance for whether or not discrimination is unfair is provided in section 56(5) of the Constitution which states that “discrimination is unfair unless it is established that the discrimination is fair, reasonable and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom”. This creates a rebuttable presumption of unfair discrimination once discrimination is found to exist. The onus is on those responsible for the discrimination show that it is fair.
The problem with this case is that the argument against discrimination seems to have been applied in respect of the mother only and not to the child. The treatment of the mother is relevant only by comparison to how the law treats the father. But the proper subject is the child born out of wedlock – whether or not conditions imposed upon that child before he/she can get a birth certificate are compatible with anti-discrimination rules in the Constitution. As already noted, the letter and spirit of section 56(3) is that a child should not be subjected to unfair discrimination merely because that child is born out of wedlock. Let us now consider whether the provisions of the Births and Deaths Registration Act pass the anti-discrimination test in so far as they apply to children born out of wedlock.
The Births and Deaths Registration Act
The Births and Deaths Registration Act has a special provision for the registration of children born out of wedlock. Section 12 of that Act states three possible ways through which a man can be registered as the father of a child born out of wedlock:
- Where both the father and mother of the child make a joint request and the man acknowledges that he is the father of the child (section 12(2)(a))
- Upon the request of the father, where the mother of the child is dead or has abandoned or deserted the child (section 12(2)(b))
- Upon the joint request of the child’s mother and a parent or near relative of the alleged father, where the alleged father of the child is dead (section 12(2)(c.))
Section 12 of the Act shows that a child born out of wedlock is subjected to conditions that are different from those which apply to a child who is born in wedlock. This difference in treatment is inevitable but the consequence is that the answer to the second part of the above test is that there is discrimination against children born out of wedlock.
This leads to the crucial third question, which is whether this discrimination is unfair.
As already stated, section 56(3) of the Constitution creates a presumption of unfair discrimination where such discrimination exists. In this case, the state had to prove that discrimination between children born out of wedlock and those born in wedlock is fair. To be fair, it must also be shown to be reasonably justifiable in a democratic society. The question would be: are the conditions to which a child born out of wedlock is subjected reasonable and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom? Let us consider each of conditions.
Registration by joint request of mother and father
The first condition is not problematic, where both parents make a joint request and the man acknowledges that he is the father. There is a big problem however in that the law provides a loop-hole which erodes this facility. This loop-hole is in section 12(1) which states that “no person shall be required to give information acknowledging himself to be the father of a child born out of wedlock”. This is a classic cop-out clause which effectively permits a father to abdicate responsibility for his child born out of wedlock by withholding information on fatherhood. In other words, it allows a father of a child born out of wedlock to deny responsibility.
This provision is unfair on the child who has a constitutional right to claim and assert his identity. It is a clause which betrays the hand of patriarchy which drafted it. It protects the man from taking responsibility. With modern technology which helps to identify paternity, the law should require an alleged father to submit to a paternity test and to provide information which acknowledges that the person is indeed the father of the child. This would mean if the father refuses to make a joint request for registration of the child’s birth, he can still be ordered to submit to a paternity test and such information can be used to acknowledge fatherhood. The High Court did not have to make a decision on this issue, but it is highlighted here as a weakness in the law which needs review by Parliament.
Registration where either the mother or the father is dead
It is in respect of registration of birth of a child born out of wedlock where either the mother or father of the child is dead where there are stark differences which demonstrate the unreasonableness and absurdity of the law, which the High Court ought to have recognised.
Section 12(2)(b) provides that where the mother is dead, or where she has deserted or abandoned the child, the father of the child can register the birth upon request. He does not have to consult anyone or seek the assistance of any person. All that is required is his claim that the child is his own. It is very simple and straightforward for the man.
On the other hand, section 12(2)(c) provides that where the alleged father is dead, the mother of the child has to make a joint request with the parent or near relative of the alleged father. The difference between the two provisions is clear: for the man, his mere word is adequate, while for the woman, she must seek a supporting word from the parents or near relatives of the alleged father. The man faces no impediments in claiming fatherhood and registration of the child, but the woman can face resistance from the dead father’s parents or relatives, which is precisely what happened in this case. The two were in an unregistered customary union and father of the child died a few months after the child was born but before they had obtained a birth certificate for the child. When the woman sought help from the dead father’s family to register the child’s birth in his father’s name, they refused. The woman’s lawyers placed this argument before the Court, but the judge failed to take it into account. In fact, at some point she stated, mistakenly that it was not “entirely legally correct” that a father could procure a birth certificate without anyone’s assistance. Clearly the judge misread the applicant’s argument because she was referring to section 12(2)(b) which allows a father to procure a birth certificate without any assistance.
In this particular case, the Mrs Justice Munangati-Manongwa betrayed a very patriarchal attitude to the whole situation: her reasoning leaned more towards the protection of the alleged father’s family identity than the interests of the child. She reasoned that allowing the women to register the child in the dead father’s name on their word would open flood-gates of fraudulent registrations. Even if this might be a risk, she did not apply her mind to the fact that the law already allows a father to register a child’s birth on his mere word in terms of section 12(2)(b). Why shouldn’t the law require a man to seek the assistance of the dead woman’s parents or near relative before he can make a paternity claim to register the child?
The judge’s reasoning suggests that it is women but not men, who are likely to make false claims of fatherhood upon rich men for purposes of inheritance. To prevent this, women are subjected to having to request the assistance of the dead father’s parent or near relative. The law is based on the belief that it is women and not men who have the gold-digger mentality. It’s reasoning from an era where men were the only wealthy ones and women were mere dependents. What about the mischief that a man might claim paternity of a wealthy dead woman’s child in order to get access to her estate? Yet the man does not have to face the same stringent conditions that a woman in similar circumstances must face. There is clear discrimination in these two provisions on the grounds of sex which contrives section 56(3) of the Constitution. The irony of this judgment is that the learned judge who wrote it is a woman, confirming once again that both men and women can be agents of patriarchy. Strangely, the learned judge described the applicant’s argument which pointed to this absurdity as unpersuasive, “irrational and without merit”.
Joint assistance of dead father’s parent or near relative
Section 12(2)(c.) which requires the mother to seek the consent of the dead father’s parents or near relatives imposes an unreasonably restrictive condition on child’s ability to assert his identity. If the parents or near relatives refuse, the child is effectively denied his opportunity to assert his identity. But why should the child’s rights be dependent on the whims of his father’s parents or near relatives? Why should the law impose such a restrictive condition which leaves the child without any other option? It is in this narrow restrictiveness that the law is arguably unconstitutional. The law should be flexible enough to provide options for the child to prove paternity without having to rely on the word of his dead father’s parents or relatives, who might be hostile to his mother. Strangely, the learned judge reasoned that relying on the dead father’s parents or relatives was actually “flexible”, “less cumbersome”, “cheap and “simple”. Clearly, the learned judge did not apply her mind to the fact that an irrational refusal by parents or relatives of the deceased father to assist in the registration has the effect of shutting the door on the child as the law offers no other option – which is the restrictiveness and inflexibility which makes it unreasonableness and unconstitutionality lies. Section 12(2)(c.) should be more flexible, allowing the child other options besides the word of the dead father’s relatives.
What is clear is that the Births and Deaths Registration Act was written in an era when new technologies, such as DNA technology or other technology used to trace and determine parentage and ancestry did not exist. There is no scientific evidence that the word of a dead man’s parents or near relatives is conclusive proof that the dead man was the father of the child. Indeed, there are new technologies which can do a far better job of proving paternity if that is indeed the purpose of the law. This is the case of a law which is lagging behind technological developments and needs reform. Strangely, the judge seemed to think that the fact that the law does not make provision for scientific proof of paternity is an advantage and a flexibility. Her view was that this would be expensive in a society where resources are limited. The learned judge’s reasoning is flawed and completely misses the point. Allowing the option of using scientific tests, such as DNA tests and others does not limit options for the child: it increases them. It allows the child another route to prove paternity where the dead father’s relatives have refused to co-operate. How the judge saw this as a burden on the child is beyond comprehension.
Section 10 of the Sixth Schedule to the Constitution provides that “… all existing laws continue in force but must be construed in conformity with this Constitution”. Therefore, the judge was supposed to construe section 12(2)(c.) of the Births and Deaths Registration Act in conformity with s. 56(3) of the Constitution. It is not only unfairly discriminatory on a child born out of wedlock but also in the way it treats women and men differently when they seek to register the birth a child born out of wedlock where the other partner is deceased. It is unncessarily restrictive and burdensome on women than it is on men and there is no justifiable reason for that kind of discrimination.
Finally, a small anecdote on the origins and politics of the formulation of anti-discrimination clause (section 56(3)): During the writing of the constitution, the formulation of this clause caused some controversy. The initial clause was that there should be no discrimination on the basis of “circumstances of birth”. This phrase was vehemently opposed by some who saw some sinister intent in it. They thought it was surreptitious way of protecting LGBT rights. They wanted it out completely. When they asked why it was necessary to keep it, we had to quickly think of an example. That’s when I suggested that if it were removed, it would allow unfair discrimination against children born out of wedlock. It was just a quick example to save the clause. “If that is what you want to protect, why don’t we just use those words, Dr Magaisa?” asked one of the negotiators. And in that moment the clause “whether they were born in or out of wedlock” was substituted for “circumstances of birth” in the overall anti-discrimination clause.
Interestingly, given the dramatic circumstances of its birth, there are now two cases which have come before the courts, in which this very clause has been implicated. Unfortunately, in this case where it would have been most appropriate, both the lawyers and the Court seem to have missed it completely. Perhaps another time.
Wamagaisa
