GK and BOK had a child out of wedlock. Despite not being married, GK provided financial and other support for the child from her birth. The child had lived with GK for a year and during that time, BOK (the child’s mother) became involved in a relationship with MT. At the end of that year MT attempted to adopt the child of GK and BOK with the consent of the latter. Since the child parents weren’t married, GK’s consent regarding the adoption of the child was not required by Section 4(2)(d)(i) of the Adoption of Children Act (the “Act”).
Therefore, GK submitted a complaint before the High Court of Botswana alleging that the Act discriminates on the basis of marital status and gender, and as such should be declared unconstitutional as inconsistent with the constitutional protection against discrimination on the basis of certain protected classes under Section 15 of the Constitution of Botswana 1966 (the “Constitution”).
The Court reviewed the definition of formal and informal equality in the context of Botswana’s Constitution, finding that informal equality before the law is recognized in Section 3 of the Constitution. The Court also emphasized that Section 3 of the Constitution should be understood in regard with related sections of the Constitution, including Section 15 (protection from discrimination).
The High Court applied a dynamic approach while carrying out constitutional interpretation, understanding the constitution as a living document and embodying values to be interpreted in the context of contemporary norms (See Attorney General v. Dow 1992 BLR 119 (CA)). Based on this approach to constitutional interpretation, the Court recognized that the Constitution requires that a law which promotes differentiation must have a legitimate purpose and should bear a rational connection between the differentiation or limitation and that legitimate purpose it pursues.
Moreover, the Court reviewed jurisprudential standards in Europe, North America and South Africa regarding adoption and children’s rights, finding that most jurisdictions base the rights of fathers to consent to or veto the adoption of their children on the degree to which the father has established a familial relationship with the child, and should not be entirely informed by the marital status of the father at the time when the child was born. In this sense, when fathers demonstrate they carry out responsibilities of parenthood, they acquire the right to direct important decisions relating to the child (See the South African case of Fraser v. Children’s Court Pretoria North and Others 1997, as well as the United States case of Caban v. Mohammed (441 US 380-Supreme Court 1979)).
While Botswana’s Constitution establishes some grounds upon which discrimination is constitutionally justifiable, the Court noted gender, health, and disability are not amongst those grounds. Furthermore, the protected grounds listed in the Constitution are not exhaustive, but rather examples of the classes that are protected from discrimination under the Constitution (See Amissah JP in Attorney General v. Dow).
The Court also recalled that the Constitution “outlaw[s] discrimination on grounds that are offensive to human dignity.” (See Diau v. Botswana Building Society 2003((2) BLR 409 (IC)). Furthermore, the customary laws which dictate that a child born out of wedlock belongs to the mother’s family “offends any notion of fairness, equality and good conscience when measured against contemporary norms” and recognized that the Constitution trumps customary laws to the extent of any inconsistency. Relating to the case in question, the Court found that GK had established, on evidence, his strong familial relationship with his daughter.
Finally, the Court found that the protective provisions of Section 15 of the Constitution should be read in light of the overarching “umbrella” concepts of equality embodied in Section 3 of the Constitution. Furthermore, the Court established the exclusions in Section 15(4) should be interpreted narrowly where their impact would be to cause discrimination that is not rational or justifiable in the public interest (See Ramantele v. Mmusi and Others (CACGB-104-12)  BWCA 1). The exclusions in 15(4) of the Constitution should not be read as permitting discrimination based on protected grounds in the context of certain legislative areas, including adoption and personal matters. Rather, courts should consider the public interest (including the preservation of customary law if not antithetical to the objects of the Constitution) if discrimination based on a protected ground is established in the context of one of these excluded legislative areas.
Consequently, the Court found that it is unfair gender discrimination to require consent of the mother, but not of the father, for adoption of a child born out of wedlock. This distinction has the potential to harm the fundamental dignity of fathers, and hence is impermissible under Sections 3 and 15 of Botswana’s Constitution. The Court therefore held that the Adoption of Children Act Section 4(2)(d)(i) was unconstitutional because it has the effect of discriminating on the basis of marital status and that the discrimination did not serve any legitimate purpose or interest that was permissible under the Constitution.