INDEPENDENT studies conducted between 2014 and 2019 indicate that well over 32,8% of men are being compelled, through court orders, to maintain children who are not biologically their own.
This growing number of men who discover, often after years of paying maintenance or raising children within a marriage, that the kids they believed were theirs are in fact not, has prompted calls for legislators to consider a law mandating DNA testing at birth.
One can only imagine the profound loss and emotional pain experienced by men caught in such circumstances.
These situations often arise both from marital infidelity and from legal provisions that impose paternal responsibilities on men for children merely alleged to be theirs, as set out in the Maintenance Act [Chapter 5:09].
The Act requires courts to make maintenance orders only where they are satisfied that the person against whom the order is sought is legally liable to maintain the child, as stated in Section 6(2)(a).
Paternity, therefore, becomes central. The law rightly expects that if a man fathers a child, he must take responsibility for that child because it is in the child’s best interests.
Paternity is the legal determination of the biological father, while maternity, unlike paternity, is rarely in doubt.
For children born in wedlock, the law presumes that the husband is the father, even if the wife was engaged in an adulterous relationship.
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In Shona, this is captured in the saying gomba harina mwana, and in Latin, pater est quem nuptiae demonstrant — the father is he whom marriage indicates.
But lived experience has shown that this presumption sometimes works grave injustices.
Many men unknowingly provide for children fathered by other men but presumed to be theirs simply because of their marital status.
For children born out of wedlock, the law requires only that the mother prove sexual intercourse.
Once she establishes that the alleged father had sex with her during the probable period of conception, a presumption of fatherhood arises.
The challenge, however, lies in the limited defences available to rebut this presumption, most notably, that evidence of the woman having multiple sexual partners is not accepted as a valid defence.
The case of Moyo v. Moyo HH-31-05, in which DNA testing proved that a child born within a marriage had been fathered by another man, highlights the importance of scientific evidence.
However, it does not in itself justify making DNA tests compulsory.
Under current law, even where it is proven that a woman had sexual intercourse with multiple men during the conception period, such evidence only suggests that the alleged father may not be the biological father.
It does not rebut the presumption of paternity.
This legal position, in my view, must be revisited.
A law that assumes a woman, even one with multiple sexual partners, always knows exactly who fathered her child is inherently unfair.
The idea that a “promiscuous being can still have superpowers to know exactly who fathered the child” is flawed.
Where legitimate doubt exists regarding paternity, courts should require more than mere proof of sexual intercourse between two consenting adults.
At this stage, and only at this stage, should the law compel DNA testing, with the state covering initial costs and recovering them from the at-fault party after determination.
This proposal must, of course, be viewed in light of constitutional rights, such as the right to privacy under Section 57, which protects individuals from intrusive state actions.
Yet Section 19(1) of the Constitution compels the State to act in the best interests of the child: “The State must adopt reasonable policies and measures to ensure that in matters relating to children, the best interests of the children concerned are paramount”.
Our courts have affirmed this position. In Mtshingwe v. Moyo, the court noted: “In fact, in W v. W [1963] 2 ALLER 841 at 845, the learned English Judge stated, ‘To compel persons to submit to a blood test without their consent seems to me a very serious interference with personal liberty and rights.
Very convincing reasons would have to be shown before I could conclude that such a power was within the interest jurisdiction of the court’”.
While acknowledging that “any infliction of wound or prick on an individual is per se an assault”, Justice Mapios Cheda reasoned that courts should adopt a robust approach when minors are involved, because “it is trite that the courts will always relax their rules and practice in the interest of the children”.
It is undoubtedly in the child’s best interests to know their true biological father, rather than have paternity determined by a mother’s strategic choice, often influenced by financial considerations.
That said, compulsory DNA testing at birth could cause more harm than good if no dispute exists, potentially destabilising families and causing unnecessary emotional trauma.
The Constitution’s Section 25, which calls on the state to “protect and foster the institution of the family”, must guide us.
Mandatory DNA testing where no dispute arises does not protect families; neither does it deter infidelity.
Historically, courts accepted proof of sexual intercourse as enough to establish paternity because scientific alternatives did not exist.
But it would be primitive to continue relying on ancient Roman principles or customary norms in an age where science provides far greater certainty.
Therefore, DNA testing should not be compulsory where paternity is not in dispute; it should only be required when doubt or conflict arises.
In conclusion, while the push for compulsory DNA testing at birth in Zimbabwe stems from a genuine desire to protect men’s rights and safeguard children’s welfare, it must be approached with careful balancing.
Certainty in paternity is important, but so too are privacy rights, family stability and the broader social implications.
Zimbabwe needs a legal framework that addresses these concerns thoughtfully, ensuring fairness, protecting children, and upholding constitutional principles without unnecessarily infringing on personal liberties.
- Mhlanga is a law student at the University of Zimbabwe.
