HOW should a judge respond when discriminatory aspects of customary law conflict with the constitution? Earlier this month Judge Oagile Dingake of the high court in Gaberone, Botswana, declared his country’s adoption laws unconstitutional for just this reason, in a decision that will set his country talking – and will be quoted round the world.

Dingake had to deal with the tragic relationship between a man, his 15 year old daughter and her mother, none of whom can be named.

The girl’s parents never married each other and the mother is now party to her boyfriend’s attempt to adopt the girl.

Botswana’s adoption laws have no role for an unmarried father – even, as in this case, where the father has been emotionally and financially supportive throughout her life including before birth; not even, as here, when the boyfriend appears unstable and has threatened to kill the child.

The court heard how, at some stage, relations between the mother and T, her boyfriend, became strained, and the mother asked the father, K, if the girl could live with him, his wife and their children. He gladly agreed and in 2007 she moved to her father’s home.

Then the mother told K that T threatened to find and kill the girl. K reported this to the police. They questioned T; he admitted making these threats and was warned by the police.

Later the mother demanded that the girl, called C by the court, be returned to her and T. But soon after C’s return the mother abandoned the child following an argument with T, and C ended up with her maternal grandmother.

The girl is now once more with her mother and T, but the father has been stopped from any visits or contact though he continues his financial support. Despite this history T wants to adopt the girl – and the law makes the father powerless to prevent it. The courts were K’s last hope.

The mother in the case did not file any papers opposing K’s action but at the last minute she tried to stop the matter being argued in court: she had been ‘too busy’ to act earlier, she said.

Unimpressed, Dingake refused postponement, saying the casual way she treated the matter and her ‘open contempt’ of the court was ‘intolerable’. Though she was not represented in the case the attorney general also opposed K’s application, arguing that the law as it stood was constitutionally sound.

Under customary law a child ‘born out of wedlock’ belonged to his mother’s family, he said. The unmarried father had no legal rights ‘due to the surreptitious nature of the conception’. In addition the ‘infringing father’ in such cases was still charged a number of beasts as a sanction ‘for having violated not only the lady in question but also for disrespecting the mother’s family and bringing shame on them.’

In a judgment that extensively analysed world trends on the subject of an unmarried father’s role, Dingake dealt with the relationship of customary law and constitutional values, concluding – as he has done in earlier cases – that ‘culture’ can’t trump the constitution and must comply with notions of ‘fairness, equity and good conscience’.

There could be no disputing the care and support of the father, he said, and to suggest that K should have no say, ‘when his child is about to be adopted by a man who threatened to kill her is the height of heartlessness and extremely demeaning to (K’s) human dignity.’

‘It is so heart-wrenching that it cannot find support (from) any court, properly directing itself.’

Discrimination against unmarried fathers who had shown commitment to the child’s welfare cannot find support in a modern society whose bill of rights is inspired by the right to dignity and equality, he said.

Parents, married or not, must be allowed to carry out their parental responsibilities towards their children and when a ‘grave question’, such as this one, confronts the court ‘we cannot blink or equivocate. We must declare what the law is.’ Even when a law of parliament conflicts with the constitution ‘we must say so without flinching. It is our sacred duty to enforce the commands and values of the constitution.’

The final outcome: Botswana’s adoption laws have been declared unconstitutional to the extent that the consent of unmarried fathers is not required; the girl may only be adopted by consent of K. And any adoption that may already have taken place without his consent is set aside.

K v K and others