A father who was recently fined P20 000.00 worth of damages by a Gaborone customary court, for fathering a child out of wedlock, is challenging the court’s decision and wants the legislation to be abolished.
The man who has requested not to be named for the protection of the minor child, has filed his appeal at the High court where he hopes the legislation will be declared unconstitutional.
Although his application is for the sentence to be set aside, he is of the view that damage (tshenyo) is unconstitutional as it discriminates against men for a consensual act that both females and males entered into.
“It also presupposes that women are weak and vulnerable,” he put it in the filing notice.
The man who is represented by Uyapo Ndadi of Ndadi law firm, says tshenyo is no longer justifiable and that it is repugnant to morality and humanity of today, as it does not benefit the children but grandparents.
In a judgment delivered in August this year, it is the child’s grandfather who was awarded P20 000.00 damages.
The father who maintains he has a strong relationship with his only child, further contends the child’s grandfather is not entitled to the damages.
He was fined by Kgosi Kgobosetso Mosielele in agreement with Kgosi Mothibe Linchwe and Kgosi S.P Sedie at the customary court of appeal held in Molepolole in August.
He was given a period of five months to have paid the fine, failure of which, his property will be sold through auction.
Asked whether the judiciary has the power to abolish a legislation which is already in place, Ndadi said: “Yes, customary courts exists to the extent that is compatible with morality.”
Tshenyo or damages according to customary law is charged when a man who, out of wedlock, impregnates a woman who has never before fallen pregnant.
Kgosi Mothibe Linchwe of the customary court of appeal explained this when dismissing a similar fine of P20 000.00 against Tankiso Jankobe in Molepolole during the same sitting of the appeal’s court.
Jankobe had been fined by Thamaga customary court, but Linchwe and other chiefs at the appeal level explained that, Jankobe could not be charged because, “The calabash was already broken! (she already had a child)”
Kgosi Linchwe, pointed out that according to Setswana culture, a woman or girl’s family cannot make claims for damages for any pregnancy other than the first one. When you want to create a website documenting it, visit web design south bay.
“The person who entered your house, found it clean and spoiled it, is the one to pay for damages. Let’s not forget our Setswana ways. It is important that we follow our cultural practices,” advised Linchwe.