ILLUSTRATION: Out of wedlock children are disadvantaged

Botswana Labour Migrant’s Association (BoLAMA) has expressed concern over greedy families of ex-miners who are bent to exclude children born out of wedlock from benefiting from their father’s inheritance.

So concerned is the association that it joined this year’s commemoration of the African child’s day to pass the message and request government to reconcile child protection laws, to stop those using regressive customary laws to deny the children the rights to their parents’ estates.

“The inheritance disputes which BoLAMA mediates, involve disputes over inheritance of ex-miners benefits, whereby maternal or paternal family members disqualify ex-miners’ children born out of wedlock from claiming their deceased fathers’ estate when compensations are due and payable to them,” noted BoLAMA in a statement.

This challenge, BoLAMA maintains, speaks to the broader challenges identified in the country’s legal framework, particularly the reconciliation of common law and customary law inheritance cases involving children and the extent of both systems of laws protection of children’s welfare and rights.

“BoLAMA recognises that both systems of law are applicable and enforceable in Botswana. Further customary law remains the predominant law in rural Botswana, however common law under statute invariably supersedes customary law. The foregoing tends to place a heavy burden on these children in asserting their inheritance rights against their deceased fathers family,” reads the statement.

Further, according to the association, most inheritance cases involving children are dealt with by customary courts and hardly escalate to the highest courts, notwithstanding the High court being the upper guardian of all minor children in Botswana.

It is not only children born out of wedlock who are at the receiving end of this discrimination, but those whose parents were only married under customary law and BoLAMA’s stand is that, “Article 21(2)(b) of the African Charter on the rights and welfare of the child calls on states, including Botswana to take measures to eliminate culture or social practices affecting the dignity of children on the basis of their sex or other status. This includes disqualification of children from inheriting their parent’s estate on grounds that they were born out of wedlock.”

BoLAMA therefore called on government to interrogate the protection of children’s rights in customary inheritances cases, engage in robust social dialogue about reconciliation of customary and common law in children’s rights.

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