In a judgment handed down on Monday, the Registrar of
Births and Deaths was ordered by Harare High Court judge, Justice Owen Tagu, to
allow fathers to apply for and obtain birth certificates for their children
born out of wedlock if the mothers deserted or abandoned the children.
The Registrar was not allowing fathers to secure birth
certificates for their children without a marriage certificate or the mother of
the child.
The judgment came after Bernard Tashu together with child
rights activist Petronella Nyamapfene approached the High Court to compel the
Registrar to comply with the Birth and Death Registration Act which allows
fathers to apply for birth certificates for their children in circumstances
where the mother abandoned or deserted the child.
Bulawayo-based lawyer Mr Lison Ncube said the High Court is
the upper guardian of all minors and what the High Court considers is the best
interest of the child.
“I personally think the judgment is in good chase because
it is putting the best interests of the child above everything else. It is also
helping children who come from these circumstances who also have the right to
identity. I totally support it on the basis that it has put the best interest
of the child at the forefront and it has made sure that children are not
prejudiced of getting the necessary paperwork simply because of various family
problems or circumstances they find themselves in,” said Mr Ncube.
He said it was a judgment in the right direction as far as
assisting children in getting the required identity which is protected in terms
of the Constitution.
“It must be a good day in history for us to be having
judgments of that nature,” said Mr Ncube.
Padare/Enkundleni/Men’s Forum on Gender national director
Mr Walter Vengesai said children should not be disadvantaged in terms of
procuring important documents because of the unavailability of one parent.
“We welcome this development because it’s in the best
interest of the child for either of the parents to be able to procure those
important documents. We hope that it will enable lots of children without birth
certificates to get those documents so that they can sit for exams and do other
important things that require those documents,” said Mr Vengesai.
Amakhosikazi FM director and women’s rights activist Mrs
Busi Bhebhe said fathers are entitled to equal rights as mothers.
“It’s a fair law given the equality we’ve always been
crying for in terms of human rights. Fathers are entitled to equal rights as
mothers. They need to have access to their children and children need to be
able to get what’s duly theirs, be it from a mother or father. They have to be
able to have access to their documents without infringement because one parent
is not there,” said Mrs Bhebhe.
She continued: “Where I seem to have a problem is that the
ruling didn’t seem to define what abandonment is. My question is, what’s the
definition of abandonment because a father may choose to relocate with the
child say from the rural areas to the city or vice versa because he’s the
breadwinner and the mother failing to equal the financial travel costs may be
lied about to say they have abandoned the child.
Or a father may chase away a mother through gender-based
violence or the mother runs away to safety and it is defined as abandonment.”
Mrs Bhebhe said the ambiguity in terms of defining
abandonment could be used broadly to disenfranchise mothers of their rights
over their children.
“It can make a father deprive a child of access to him/her
by a mother. Also, is this law going to specify who is considered a father —
does it come with a DNA test to prove they’re the real father because with the
mother it’s easier. She carried this child for nine months, there’s proof that
she carried this child; the clinics have given her a birth record and have said
indeed she is the mother.
“How does the father substantiate himself without any
biological proof linking him to the child? If those questions are specified in
the law, then it’s a fair law. It must be clear how they’re going to roll it
out to the rest of us,” said Mrs Bhebhe. Chronicle
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