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Daniel Nemukuyu Senior Court Reporter
The common law position that obliges men to maintain and provide for their children born out of wedlock but denies them the right of access to these children has been challenged, with lawyers describing the law as unconstitutional.

In terms of the law, custody and guardianship of a child born out of wedlock is vested in the mother and the biological father only pays maintenance, finances the education and meets all the child’s requirements but does not have the right of access, the mother having total control over whether the father sees the child or not.

He can only see the child with the consent of the mother but with limitations.

In most cases, there will be bad blood between the father and the mother, hence access to the children becomes difficult.

A Harare man, Mr Farayi James Mabasha, keen on changing the country’s law and asserting his constitutional rights, has approached the High Court challenging the constitutionality of the common law in that respect.

Mr Mabasha sired a child with Ms Pamela Gazi and he is taking care of the child in terms of the law.

However, he feels his rights are being violated as he has always been denied access to the child.

His lawyers, Machokoto and Partners, have instructed Advocate Thabani Mpofu to argue the case and he has since filed heads of argument addressing the High Court on constitutional issues.

In the heads of argument, Advocate Mpofu said in a normal family setup when children and their parents are staying under one roof, the father has unlimited access to the children but the law unfairly treats fathers in the event that the children are staying with their mother elsewhere.

“The law in this country says there is a difference between children born in and out of wedlock when it comes to the question of their father’s right of access. In respect of children born in wedlock, the law recognises the existence of an inherent right of access which access can only be denied if the father represents a danger to the interests of the children.

“In respect of a child born out of wedlock, the law says that their father has no inherent right of access. “Exceptional factors will have to be relied upon and demonstrated by such a father before the court could grant him the right of access,” Adv Mpofu argued.

He argued that the father of the child born out of wedlock is required by law to maintain that child on the same standard as a child born in wedlock but in terms of access, the law turns a blind eye on the interests of the child’s provider.

The child born out of wedlock, according to Adv Mpofu, is entitled to assume the surname of the father upon registration of the birth and the same child is entitled an equal share of the father’s estate with others born in wedlock.

Adv Mpofu indicated that children born out of wedlock can also legally challenge their father’s decision to disinherit them.

To that end, Adv Mpofu said there was a problem with the contested common law position and it was now time to do away with it.

“There is therefore something fundamentally wrong with the position of the law. The law is unjust, senseless and has outlived its usefulness.

“Whatever reasons may have existed for this legal position, certainly no longer exist now. In fact, if the law is not aimed at any particular objective, it loses its quality as law,” he said.

The law in question, Adv Mpofu argued, has no place in a democratic society like Zimbabwe.

“If the law has no rational object, it cannot be valid. It is only in an autocratic environment that laws exist for their own sake.

“This country has no place for that. It is a constitutional democracy and only laws that make sense and seek to achieve a legitimate object are valid. For that reason, the common law position must be considered vis-a-vis the provisions of the Constitution of Zimbabwe,” argued Adv Mpofu.

The law, according to the lawyers, is in violation of the right to human dignity as enshrined in Section 51 of the supreme law. In terms of that section, every child has a right to a father while fathers have a right to their children.

Adv Mpofu argued that it was contrary to the human dignity of children, for them to live as if they do not have a father when the father is alive and willing to be with them.

The law also causes psychological torture to children born out of wedlock who cannot access their father, in breach of Section 53 of the Constitution of Zimbabwe.

Section 56 of the Constitution, which provides for equality and non-discrimination is also violated by the same piece of legislation.

The contested law, according to the lawyers, violates Section 63 of the supreme law in that it inhibits children from interaction with their family’s cultural values and also hinders their father from imparting the same to the child.

The matter is yet to be set down for hearing.