MOTHERS HAVE RIGHTS OVER CHILDREN – COURT
EDITH Zewelani Nawakwi was the unmarried mother of two boys. She had them included on her passport. However, when her passport expired and she applied for renewal, the Passport Office refused to include her children. The officers demanded that the fathers of the two children should give consent for them to be included on the mother’s passport.
Nawakwi, upset with these requirements, petitioned the Lusaka High Court, arguing that she was being discriminated on the ground of gender, sex and that she had equal rights over her children. She argued that she has been looking after the two children on her own without the support of their fathers.
The High Court heard her petition and the Judge agreed that the requirement for the fathers of the children to give consent on the passport forms was unconstitutional.
“The facts revealed by this case show that a mother of a child is not regarded by the government to be an equal parent to a father,” the Judge observed.
“The father has been made to have more say over the affairs of a child at least in so far as the endorsement of the particulars of the child and the issuing to a child a passport,” the Judge stated.
The Court noted that this procedure was discriminatory to single mothers and yet they are the ones who look after the minor children since birth.
“Yet the mother is the one who must have conceived and carried that child in her womb for nine months more or less and then gone to maternity ward to deliver,” the Judge said.
The Judge said it was unfair for the passport office to treat the fathers as superior to the mothers of the children especially in cases where the single mothers have taken up all the responsibilities.
“Here the petitioner is both the father and mother of the two children. She is an unmarried mother. She is bringing up her two children without a husband,” the Judge noted.
“The mother is as much an authority over the affairs of her children as the father,” the Court ruled, adding that a single parent family headed by either male or female is recognized as a family unit in Zambia.
The Judge noted that denying the children to be put on the passport of their mother on account that their father did not consent also amount to infringement of their right of movement.
“Since they cannot travel outside the country without passports, they are entitled to have them, unless legal restrictions attaching to the freedom of movement imposed by the Constitution validly apply,” he said.
“The petitioner has been unfairly discriminated against on the grounds of sex,” the Court ruled, and ordered that her children be added to the passport without any further documents.
Case citation – Nawakwi v Attorney General (1991). Judgment delivered by Judge Musumali in June 1991, which is long before Nawakwi was in government.
This case is widely used in law schools and I have picked it in honour of the late Nawakwi for having contributed to the jurisprudence of this country. As you can see, she was a young woman and yet fought for her rights in the High Court during the reign of President Kenneth Kaunda.
BY DICKSON JERE