UB academic underpins rights of children borne out of wedlock
Oarabile Mosikare | Wednesday August 6, 2014 17:04
Senior lecturer in the Department of Law, Obonye Jonas, wrote this in his article titled: “Extra-marital children and their right to inherit from their fathers in Botswana: a critical appraisal”, published by the European Law Reform Journal.
The article analyses the rule that excludes non-marital children from inheriting from and through their fathers under the two systems of laws. “Its central claim is that this rule is antithetical to extra-marital children’s rights to equality, non-discrimination and dignity. The article argues that the rule is devoid of social currency, has no place in a democratic society, and must be abolished. In Botswana, children born out of wedlock have been suffering serious legal and societal discrimination from time immemorial,” explained Jonas.
He said although discrimination on the ground of illegitimacy is abating, non-marital children are still placed in an inferior position, relative to those born within wedlock. Society justifies this repugnant treatment of these children on the basis that it discourages men and women from having children out of wedlock and protects traditional family life.
“One area in which non-marital children continue to be discriminated is inheritance. This article discusses and assesses the rule that non-marital children have no legal right to inherit from and through their fathers in intestate succession. This article attempts to demonstrate that the rule that denies children born out of wedlock the right to inherit from their fathers is inimical to the children’s constitutional rights to equality, non-discrimination, and dignity and needs to be abolished.”
Jonas said the inegalitarian status of non-marital children is no longer supportable since the factual and temporal circumstances have now changed to shun discrimination and embrace equality and non-discrimination. He continued: “The rule under discussion is a relic of the past not befitting a democratic society founded on the sacred tenets of human dignity, non-discrimination, equality and freedom such as Botswana.”
He said the rule in question is a fossil bygone legal dispensation and has lost social currency. According to him, present rule is an ossified construct of law which is impervious to change and out of touch with modern conceptions of justice, within the larger scheme of children’s rights.
However, there are currently no indications that parliament is intent on abolishing the law. This leaves the job to the courts to strike it down. The position is now settled that courts have the latitude in appropriate cases, such as those involving the rule in question, to enact the law.
“The last point to make in conclusion is that children cannot be blamed for the conditions of their birth, for which conditions they bear no responsibility. It is hoped that this article will result in a long-awaited abolition of inequalities associated with the law of descent, based on conditions of birth and, thus, establish the principle that children should be treated equally regardless of descent.”
Meanwhile, the Court of Appeal recently ruled in favour of extra marital accentuating that they have the right to inherit their father’s estate. When passing judgment, Justice Elijah Legwaila said it was evident that Baone Kealeboga and her siblings were Charles Kehumile’s biological children. Consequently, the High Court’s decision to deny the children and their mother any claim to the deceased’s estate went against the customary law and should be quashed, Legwaila said.