High court Judge Justice Key Dingake on Monday ordered that the case in which Godfrey Khwaere is challenging the adoption of children born out of wedlock without the consent of their biological fathers be heard on September 15.
The Khwaere case is an important test case as it raises a constitutional issue of whether government legislation and administrative practice conforms to the guiding principles of the Constitution. Such conformity is fundamental to the rule of law. Justice Dingake made the order after hearing an application from Attorney Uyapo Ndadi.
The Attorney General was absent in court and has not filed failed opposing papers before the court. In order to ensure that Attorney General do appear before him, Dingake ordered that Ndadi personally serve the order on the Attorney General and make sure she attends the court hearing. Dingake also directed the Attorney Genera to assist the court by appearing before 15 September at 2 PM. Both Khwaere and the AG were ordered to file their heads of argument on 28 August 2014. In his application Khwaere contends that the law is unconstitutional as it infringes on his right to equality, non-discrimination and is also inhuman and degrading.
The first respondent being the mother of the adopted child appeared before the court and told the court that she was too busy with school to file opposition papers for the last 6 weeks. However, she pleaded with the court to grant her an opportunity to oppose. The court turned down her request after Ndadi opposed her request.
The case brings to mind on how former high Court Judge, then a private attorney, Unity Dow successfully challenged the legitimacy of the Citizenship Act which denied Botswana citizenship to her children on the basis that her husband is a foreigner, even though she herself is a citizen of Botswana but she did not stand in court merely for herself, or only for the women of Botswana who are married to foreigners.
She also represented all the women of Botswana who are treated as second-class citizens under the various discriminatory laws. For the women of Africa Unity's victory is our victory. (Additional reporting by Lentswe la Lesedi).