Publié : 27/Fév/2004
Source: UN Committee on the Rights of the Child / Botswana government
Committee on the Rights of the Child
Consideration of Reports Submitted by States Parties under Article 44 of the Convention
Initial reports of States parties due in 1997
41. In the legal system of Botswana treaties are not self-executing. For such treaties to be enforceable and applicable they must generally be incorporated by legislative enactment into the domestic law. The incorporation can either be of the whole text of the treaty or specific provisions, or the integration of treaty rules by defining terms used in the statute by reference to their meaning in a particular treaty. The Convention has not been incorporated into the domestic laws in this way. However, the Botswana courts have pronounced that: “Botswana is a member of the community of civilized states which has undertaken to abide by certain standards of conduct and, unless it is impossible to do otherwise, it would be wrong for its Courts to interpret its legislation in a manner which conflicts with the international obligations Botswana has undertaken.”2 This case was taken by a mother who was asserting her right to pass her citizenship on to her children. It follows therefore that, notwithstanding the non-incorporation of the Convention into Botswana domestic laws, where domestic law is challenged it should be interpreted by the courts in light of the provisions of the Convention and other international human rights obligations. This does not, however, mean that the State could be challenged in court for failure to implement a provision of the Convention outside a constitutional claim.
A. Name, nationality, identity: article 7
149. Every child born in Botswana must be registered in accordance with the Births and Deaths Registration Act (Cap 30:01). The child must be registered immediately after birth and given a name. For every child born in wedlock, it shall be the duty of the father and the mother of the child to give notice of such birth to the Registrar of Births within three months of such birth. In the case of a child born out of wedlock, the responsibility lies with the mother, and no person shall be entered in the registration documents as the father of the child without his express consent. Provision is however made for biological fathers of children born out of wedlock to be recognized in a document called “Father’s Consent Form” – a document through which the biological father gives express consent to be recognized as such.
150. The Births and Deaths Registration Act was amended in 1998 to ensure that registration was compulsory throughout the country. Prior to the amendment, registration was only compulsory in towns and major villages. Although provision is further made for the appointment of district registrars for purposes of implementing this Act, there is already a problem relating to lack of capacity. Children also obtain a registration card when they are 16 years of age.
151. There are only 24 district offices, however expansion is going on. The events that are to be registered include births, deaths, marriages, adoption and still-births. Some of the problems that the department experiences are the lack of registration due to ignorance that such events have to be registered, or that information is not given accurately or in a timely manner. Some Batswana for instance do not register still-births because they feel it is insignificant to report such events, or that it is contrary to their cultural beliefs to do so.
152. The law regarding citizenship and nationality is contained in the Citizenship Act of 1982 (Cap 01:01) as amended in 1984 and in 1995. Prior to these amendments the position was such that a person would become a citizen by birth and descent if, at the time of birth, his/her father (or his/her mother where born out of wedlock) was a citizen of Botswana. Those born outside Botswana acquired citizenship by descent under the same circumstance. Adopted children under the age of 3 became citizens if at the time of adoption the adoptive parent was a citizen. Children under 21 could be registered as citizens where the father was a citizen in the case of children born in wedlock, or the mother was a citizen in the case of children born out of wedlock. Effectively these provisions discriminated against married Batswana women as compared to their male counterparts as it denied them the capacity to pass on their Botswana citizenship to their children irrespective of where they were born.
153. The constitutionality of this provision was successfully challenged in Unity Dow v. Attorney General (supra) and, as a result of the 1995 amendment, became gender-neutral. The present provisions allow for the acquisition of citizenship by birth or descent if the father or mother was a citizen of Botswana at the time of birth.
154. The Adoption Act provides that an order of Adoption shall terminate all the rights and legal responsibilities existing between the child and his/her natural parents and their relatives except the right to inherit from them when they die without making a will. The Act does not take into consideration that an adoptive child may for purposes of ascertaining his/her true identity need to know his/her natural parents. The Act therefore is being reviewed to address the issue (amongst others) of whether an adopted child should be given the right to access adoption documents so as to ascertain his/her own true identity, and if so at what stage of his/her development. The legislation is going through a consultative process.
155. Children born in Botswana obtain the citizenship of Botswana as well as that of their parents (dual citizenship) but at the age of 21 they are obliged to denounce one citizenship (s14 of the Citizenship Act).
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