The story from the customary court that follows reflects emerging patterns of behavior and illustrates how the younger generation struggle to come to terms with deep rooted customary values. Our youth are making choices daily that are driven by the knowledge and understanding of their rights in modern day Botswana.
Five years ago Selei had a child with Masa. At the time of the birth of their son Warona, Masa was a first year student at the University and Selei offered to take care of their son in all respects while the mother pursued her education.
As fate would have it, their relationship soured when Masa was just about to graduate. Warona continued to live with his father. Upon graduation, Masa’s first stop was to Selei’s house to pick up Warona from his father.
Warona’s relocation was not discussed, it was rather a unilateral decision based on the emotion of the moment.
During the four years Masa was at school, relatives on both sides had agreed that damages be paid to the mother’s parents. On the date set for payment, both parents assembled at Masa’s home and Selei’s parents were just about to open their purse when Masa called her parents ordering them not to receive any payment from Selei’s family, and the damages issue was called off .
Masa found a job in a small town and put Warona into school. Selei made eff orts to visit Warona at school and Masa was not amused when the teachers reported the visit of a man who claimed to be Warona’s father.
It was against this background that the kgotla was requested to intervene, and Masa was requested to attend a reconciliation meeting.
When all the parties had assembled, Masa agreed that Selei was Warona’s father and that he had looked after the child for four years while she was studying. She also confirmed that she had picked up her son in order to provide him with the love and care she had not been able to give when she was at school. She also agreed that she refused for the damage charges to be paid due to some issues that had upset her, including being insulted by Selei’s sisters.
Generally, according to customary law an unmarried man has no right or entitlement to fatherhood, and yet in reality for four years Selei took care of Warona using his resources and developing a father/son bond. Masa on the other hand knew that as a single mother she could pull the customary law strings in her favour.
What would you do if you were to judge this matter?
The customary law is very clear. If a man is not married he can only hop on one leg to claim the rights to fatherhood, yet is expected to stand firmly responsible for the affiliation proceedings and payment of damages.
This ignores the fact that over the years some unwed fathers have become responsible, loving and realistic about the challenges of fatherhood. Selei sacrificed a lot to be a full time father for four years and during this period a very powerful bond between father and son had developed.
Must this bond yield to the dictates of customary law?
One of the arguments that arose was now that she was working, Masa could match the financial support the father provided, but this was no compensation to Selei.
Sadly as the arguments heated up, none of the parties appeared to consider what was in the best interests of poor Warona.
The Court raised the question of ‘go nyala ngwana’ (what is known in customary law as ‘marrying your child’) or the payment of damages, but Masa was very clear that she would not ‘sell’ her child. The debate makes one wonder whether ‘tigalebele’ should be dependent on the mother’s viewpoint, and if not should the voice of the mother be ignored?
This case highlights how cultural practices and tradition can promote gender inequalities and sabotage natural justice.
In this case the mother could walk away with Warona even though Selei raised the child with a love and dedication many married dads could not match. In essence he could be reduced to the role of a mere ‘sperm donor.’
There was no easy way out of this dilemma.
The parties were persuaded to consider the rights and interests of the voiceless child. Warona was not aware that the absence of a marriage certificate made his father less of a dad. There are many cases where the simplistic implementation of customary law has shut doors in the faces of unmarried fathers who may have good intentions.
This is a serious problem because the Convention on the Rights of the Child advocates that children enjoy a complete set of rights, whilst our customary law often dictates differently.
Towards 2016 what can we do differently to harmonise family life, protect the rights of children born out of wedlock and achieve gender balance?
Conservatives support customary law but reality seems to tell a different story. In this case after a prolonged and heated battle, the mother thankfully agreed that the father be allowed limited access to his son.