By Mary Taruvinga
THE High Court Monday delivered a landmark ruling in which fathers of children sired out of wedlock can acquire birth certificates for their offspring if the mothers have abandoned them or were not available.
This follows a successful application by an aggrieved father Bernard Tashu who was failing to secure a birth certificate for his 11-year-old son.
He filed the application together with a local humanitarian organisation, Justice for Children Trust, which was represented by its director Petronella Nyamapfene.
The two applicants were represented by lawyers from the Zimbabwe Human Rights NGO Forum.
The ruling was made by Justice Owen Tagu.
“Justice Owen Tagu has ordered the Registrar of Birth and Death registration to allow fathers to apply for and obtain birth certificates for their children born out of wedlock if the mothers deserted or abandoned their children,” the lawyers said in a statement.
Cited as respondents in the application were the Registrar-General as the first applicant, Home Affairs Minister Kazembe Kazembe, and the Master of the High Court as the second and third respondents respectively.
Tashu and Nyamapfene argued by barring fathers from acquiring birth certificates for children whose mothers cannot be located or do not wish to cooperate, the government was depriving the unregistered children of the right to access some basic social services.
In his founding affidavit, Tashu stated officials from the Registrar-General’s (RG) office had barred him from acquiring a birth certificate for his son Erick, whose mother he cannot locate.
He said it was unlawful for the RG’s office to grant mothers a definite advantage in acquiring birth certificates in the absence of their fathers when the fathers were barred to do the same.
“I do not know the whereabouts of the mother and the rural home is now desolate, as there is no one there,” he said.
“I believe the mother has abandoned and deserted the minor. The law does not leave the registration of birth certificates for children to their mothers only, yet the requirement by the registrar-general makes it appear that if mothers are not present, children cannot acquire birth certificates.”
In her supporting affidavit, Nyamapfene said it was easier for mothers to register their children in the absence of their fathers because they were given the benefit of a “rebuttable presumption” they are the mothers of the children, but fathers had to prove they were the biological fathers, which was discriminatory.
“Aside from birth registration being a right itself, it is an enabler of other rights. The rights to education, to obtain a national identity card, a passport, a driver’s licence, among others, are all hollow, meaningless, and inaccessible without the registration of a child at birth. Unregistered children face enormous challenges and the importance of this right cannot be overstated,” she said.
Nyamapfene pleaded with the court to consider the different circumstances of children, as some were born out of wedlock, abandoned, adopted, or had parents in the Diaspora, but still needed to be registered.