MELODY CHIKONO/ MIRIAM MANGWAYA
A LOCAL humanitarian organisation, Justice for Children Trust, represented by its director Petronella Nayamapfene, has approached the High Court seeking an order compelling the government to allow fathers to acquire birth certificates for their children even if their mothers are not present.
Nyamapfene filed the application at the High Court, together with Bernard Tashu, the first applicant, who has failed to acquire a birth certificate for his 11-year-old son, who was born out of wedlock and was abandoned by his mother.
The two applicants, represented by the Zimbabwe Human Rights NGO Forum lawyers, cited the registrar-general as the first applicant, Minister of Home Affairs and Cultural Heritage Kazembe Kazembe and the Master of the High Court as the second and third respondents respectively.
The applicants argue that by barring fathers from acquiring birth certificates for children whose mothers cannot be located or do not wish to cooperate, the government was depriving those unregistered children of the right to access some basic social services.
In his founding affidavit, Tashu stated that officials from the registrar-general’s 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 registrar-general’s office to grant mothers a definite advantage in acquiring birth certificates in the absence of their fathers, when fathers were barred to do the same.
He argues that by denying him an opportunity to acquire his son’s birth certificate, the respondents were violating Section 35 of the Constitution, which guarantees every citizen, including children, the right to acquire birth certificates.
“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 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 the her supporting affidavit, Nyamapfene stated that 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” that they are the mothers of the children, but fathers had to prove that indeed they were the biological fathers, which is discriminatory.
She said: “Aside from birth registration being a right itself, it is an enabler of other rights. The right to education, to obtain a national identity card, a passport. a driver’s licence, among others, are all hollow, meaningless and inaccessible without registration of a child at birth. Unregistered children face enormous challenges and the importance of this right cannot be overstated.”
She 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.
“Therefore, to privilege children with mothers who are willing to register them over children without mothers, but with fathers only, is exactly the kind of privileging that runs diametrically contrary to the Birth and Deaths Registration Act Chapter 5:02 and the Constitution,” she said.
The application, if successful, will be a landmark for all children without birth certificates, who are under the custody of their fathers, but abandoned by their mothers.