N AT I O N A L I N Q U I R Y R E P O R T ZIMBABWE HUMAN RIGHTS COMMISSION For Human Dignity 3.3.8 Orphaned and Abandoned Children “Throughout the Districts visited by the Committee, there was an outcry that laws were too cumbersomely applied with extreme rigidity to the extent that it discouraged clients from applying for documents”. Report on the Portfolio Committee on Defence, Home and Security Services, on the Gwanda Community Youth Development Trust Petition on Access to Primary Documents (2019). Out of the thirty-eight point five per cent (38.5%) of persons who indicated socio-cultural challenges in accessing documentation, twenty point five per cent (20.5%) stated that they could not obtain birth certificates because one or both parents were deceased. For registration to take place, death certificates or witnesses are required but these are often not available. Some witnesses had given up trying to acquire birth certificates because it was not possible for them to meet the requirements due to failure to trace the whereabouts of their parents. 3.4 LEGAL CHALLENGES People who indicated that legal challenges were a barrier to access to documentation were one point six per cent (1.6%) of the submissions received92. These challenges included gaps in legislation and non-alignment of legislation to the Constitution. One of the major challenges noted was difficulties experienced by fathers registering their children born out of wedlock. In terms of Section 12 (1) of the Births and Deaths Registration Act, the general rule for registration of children born out of wedlock is that no person shall be required to give information acknowledging himself to be the father of such a child. The Act gives exceptions to this general rule under three scenarios93. The first scenario is upon joint request by the mother and the person acknowledging himself to be the father of the child. Secondly, where the mother is dead, or has abandoned or deserted the child and finally, where the alleged father of the child is dead. A number of challenges arise from the provisions of Section 12 (2) (b). Firstly, Section 12 (2) (b) is problematic in implementation because it does not prescribe how the father’s evidence is supposed to be supported upon requesting and acknowledging himself to be entered as the father of the child. In the absence of regulations prescribing the particulars to be furnished by a father and in order to correct the irregularity in Section 12 (2) (b), the DRG, in the Births and Deaths Procedure Manual (2018) provides that in the registration of children born out of wedlock, where one parent is deceased, the surviving spouse must among other requirements, sign the declaration of paternity and the relatives of the deceased must confirm and sign the notice of birth. For the purposes of Section 12 (2) (b), this addresses the scenario where the mother is dead. However, the Manual, like the Act, is silent on the requirements to be provided by a father where the mother has abandoned or deserted the child. Based on the findings of the National Inquiry, the practice is that the same requirement for maternal relatives in situations where the mother is deceased is extended to cases of desertion and abandonment as maternal relatives are required to confirm the desertion or abandonment and to sign the notice of birth. The assumption of this requirement is that in every situation, it is possible for maternal relatives to be available for the registration of children in this setup. In reality, however, based on the evidence tendered by fathers who have custody of their children born out of wedlock, the requirement for maternal relatives to confirm the death, abandonment or desertion and to sign the notice of birth proved difficult to meet. Most fathers in this situation highlighted that they did not know the whereabouts of the maternal relatives, which sometimes militated against the registration of children, pointing to the need for flexibility in accepting other forms of supporting evidence in cases where maternal relatives are not available. Other forms of evidence could be in the form of police reports after investigations to verify if the man is the father of the child and confirmation letters from community leaders such as Councillors and traditional leaders. Section 12 (2) (c) places the responsibility on the mother of a child born out of wedlock to register the child in the father’s name only when the alleged father is deceased upon her joint request together with a parent or near relative of the alleged father. This similar responsibility is not placed on the alleged father of a child born out of wedlock whose mother is deceased. According to sub section (b) the father does not have the requirements for a joint request with the maternal relatives to register the child. Further, sub section 2 (c) places the responsibility for joint request with a paternal relative only when the alleged father is dead and not where he abandons or deserts the 92 93 See detailed analysis of findings in Chapter 6. See section 12 (2) (a) - (c) of the BDR Act. 31 31