Children born out of wedlock entitled to paternal care: Court Rules

Nevanji Munyaradzi Chiondegwa

In consistency with the recently promulgated Guardianship of Minors Ammendment Act, the Supreme Court of Zimbabwe has in a landmark ruling declared that all children have similar rights to paternal care and responsibility despite the circumstances of their birth.

Previously, all children born out of wedlock were under the sole guardianship of the mothers who had exclusive custody over the children.
The ruling means that fathers of children now have joint and equal custody over their children and may have access to them anytime.

In a progressive ruling reached in the case of Josephine Matemera v James Chirimuuta SC147/22, the Supreme Court confirmed that children born out of wedlock have the same rights as any other child with regards to paternal care and responsibility.

In the case which had been brought to the Court by Justice for Children through its Child Rights Advocate Pamellah Musimwa yesterday, the Supreme Court of Zimbabwe declared that the common law position which placed the father of a child born out of wedlock in the same position as that of third parties with regards to their children has been overtaken by recent legal developments, more particularly Section 2 and 3 of the Guardianship of Minors Amendment Act, 2022.

This cemented the position reached by the High Court in the case of Sadiqi v Muteswa HH249/20 whereby it was decided that treating a father of a child born out of wedlock like any other third party in matters concerning access, custody and guardianship renders a child “fatherless”, and deserving of no paternal care or attention save for the purpose of maintenance.

This is unfairly discriminatory to such children as they will be denied the benefit of associating with their biological father, which is an aspect of parental care, on the mere ground of the marital status of the parents at the time he or she was not born.

This principle of the common law was inconsistent with Section 81(1) (a) and Section 56(1) and (3) of the Constitution of Zimbabwe
Commenting of the matter, Kudzai Tseriwa, a social worker said, “This is a very welcome judgement although saddening that we need the courts to spell this out. You would think that it’s a no brainer. We truly hope that it will not just be a rulimg on paper but become practice in our communities. Too often children are punished for adults mistakes.”