High Court bars wo­man from reg­is­ter­ing child in late fa­ther’s name

Chronicle (Zimbabwe) - - Front Page - Fidelis Mun­y­oro

THE High Court has blocked a Harare wo­man from reg­is­ter­ing her mi­nor child born out of wed­lock in the late fa­ther’s name with­out the rel­a­tives’ con­sent and in­stead al­lowed her to regis­ter the child in her own fam­ily name.

Ms Zvikom­borero Paun­ganwa ap­proached the High Court chal­leng­ing the con­sti­tu­tion­al­ity of Sec­tion 12(2) (c) of the Births and Deaths Reg­is­tra­tion Act (Chap­ter 5:02).

The law re­quires that if the al­leged fa­ther of a child is de­ceased, his par­ents or near rel­a­tives should con­firm pa­ter­nity of child.

In a judg­ment likely to spark heated de­bate on women and chil­dren’s rights, Jus­tice Priscilla Mu­nan­gatiManongwa ruled that the re­quire­ments were sen­si­ble and within the purview of the law.

“. . . There is noth­ing un­con­sti­tu­tional about Sec­tion 12 (2) (c) of the Births and Deaths Reg­is­tra­tion Act (Chap­ter 5:02). The pro­vi­sion is not ul­tra vires the Con­sti­tu­tion,” ruled Jus­tice Mu­nan­gati-Manongwa.

She said au­thor­i­ties had to sat­isfy them­selves that the child was in­deed fa­thered by the de­ceased or that in the very least the fam­ily (whose iden­tity the child seeks to as­sume) ac­cepts that the child was or could have been fa­thered by one of their own.

The as­sump­tion of a fam­ily name, said the judge, apart from through mar­riage, had im­mense in­trin­sic im­mea­sur­able val­ues as it links one to an­ces­try, is sealed by blood and points to ori­gin.

It was also the court’s view that the leg­is­la­ture’s in­ten­tion in putting such a re­quire­ment was to safe­guard the fam­ily en­tity.

Jus­tice Mu­nan­gati-Manongwa also noted that there would be chaos if on mere say so, the Reg­is­trar of Births and Deaths Of­fice was obliged to en­ter a man’s name in the regis­ter as the fa­ther to any child.

“The car­ry­ing of a fam­ily name comes with priv­i­leges and re­spon­si­bil­ity cul­tur­ally, eco­nom­i­cally and so­cially, hence it is to be jeal­ously guarded,” she said.

“Fam­ily is cen­tral to is­sues of in­her­i­tance where it is im­por­tant that in the ab­sence of a will, whoever gets to in­herit has to be a mem­ber of the de­ceased’s fam­ily. As such it is not de­sir­able that fam­ily as­sets end up in the wrong hands.”

The judge added that if the pro­vi­sions of Sec­tion 12 (2) (c) of the Act were to be im­pugned, it would be a freefor-all sce­nario where any wo­man who has a child out of wed­lock and in the ab­sence of the al­leged fa­ther could im­pute pa­ter­nity to any­one.

“Fur­ther, with­out safe­guards, flood­gates can be opened where if en­ter­ing a man’s name in the regis­ter is done on mere say so, there can be tar­get­ing of the rich, the pow­er­ful and or the se­cure, where they can pur­port to be fa­thers, more so when de­ceased.”

Ms Paun­ganwa was in an un­reg­is­tered cus­tom­ary law union when she lost her hus­band on June 10, 2010.

This was be­fore the par­ties pro­cured a birth cer­tifi­cate for a mi­nor child born on April 2 the same year.

When ap­proached to is­sue a birth cer­tifi­cate for the child in the fa­ther’s fam­ily name, the RG’s of­fice ad­vised Ms Paun­ganwa that they could not is­sue the birth cer­tifi­cate in the ab­sence of the hus­band’s rel­a­tives as re­quired by the law.

The RG’s of­fice ad­vised her that al­ter­na­tively it could only is­sue the doc­u­ment on the strength of a court or­der, ar­gu­ing that “do­ing so in ab­sence of a court or­der will be in breach of the statute for pur­poses of gov­ern­ing is­suance of vi­tal iden­tity doc­u­ments”.

Ms Paun­ganwa was faced with a sit­u­a­tion where the late hus­band’s rel­a­tives were not will­ing to as­sist. She ap­proached the court seek­ing to com­pel the RG’s of­fice to is­sue the mi­nor child with the birth cer­tifi­cate.

The is­sue for de­ter­mi­na­tion was whether or not the pro­vi­sions of the Act com­plained of of­fended what the supreme law of the land pro­vided in Sec­tion 81(1) (b) and 81 (1) (c) (i).

Ms Paun­ganwa ar­gued that as the guardian of her child and be­ing a wo­man she was be­ing dis­crim­i­nated against in her re­quest to pro­cure a birth cer­tifi­cate for her child.

Se­condly, that her child’s right to a fam­ily name and to a prompt pro­vi­sion of a birth cer­tifi­cate had been con­tra­vened.

But Jus­tice Mu­nan­gati-Manongwa found that in essence, Ms Paun­ganwa had the ca­pac­ity to pro­cure a birth cer­tifi­cate. How­ever, the fact that the child was born out of wed­lock, as­sump­tion of a fam­ily name with­out con­fir­ma­tion from rel­a­tives was pro­hib­ited by that sec­tion.

“In that re­gard, it is not cor­rect that the ap­pli­cant is be­ing dis­crim­i­nated upon as a guardian,” she said. “If she so wishes she is able to pro­cure a birth cer­tifi­cate for the child in her own name with­out the as­sis­tance of any­one.”

Reg­is­trar Gen­eral Mr Tobaiwa Mud­ede and the Mas­ter of the High Court were cited as re­spon­dents in the mat­ter.

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