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KURUTHUM OMARY KAHIMBA AND ANOTHER V. MWAJUMA OMARY KAHIMBA, HIGH COURT, MBEYA, 2020
Biblical verse John 14:8, Lord show us the Father, paternity, disclose identity of biological father, writ of mandamus, Law of the Child Act, Chapter 13, right of a minor to know her/his biological father, anonymous donor insemination, single mothers or all mothers who raised their children alone, protecting the mother’s privacy.
- The Court made reference to a Biblical verse John 14:8, p. 1
- Lord show us the Father.
- Children sought a court order to compel their biological mother to disclose the identity of their father but the application did not succeed.
- For a writ of mandamus to apply, the respondent must be a public officer and has refused to perform a certain act and there is no other appropriate remedy, pp. 4 – 5
- Law about orders of mandamus.
- When courts are confronted with a paternity application, the right to privacy and the best interest of a child are the major things that court must consider, p. 7
- Adults are not covered by the Law of the Child Act, Chapter 13, R.E. 2019, p. 8.
- Minors have practical interests in knowing their biological parents in order to obtain support from their father since minor rights are fundamental regardless of their parents’ marital status, p. 8. Their immediate rights include, maintenance, medical support and biological identity as it is extremely important to children in case they suffer from hereditary confusion, pp. 8 – 9. Being denied this right, they may become aggressive, disorderly and intensely angry causing tension on the entire family. The children may also face societal pressure, p. 9.
- In most of our African traditions, children are regarded as the properties of their patrilineal side and not on their matrilineal side save for few tribes. Hence a child whose father is unknown is raised by his/her matrilineal side and are named after their uncle’s clan, p. 9.
- Courts may intrude on the family to protect children’s best interest, namely to ensure their safety and well being if there are proofs that they are unable to care for themselves. The intrusion by the court is mainly to favour the child welfare and to establish support obligations. Doing this, courts must also take into consideration the mothers right to privacy, p. 10.
- A mother may have authentic reason not to unveil the identity of the child’s biological father. First where she may not know the distinctiveness of the child’s biological father because she engaged in sexual intercourse with numerous partners near the time of the child’s conception. Second, she does not remember who she had sexual intercourse with at the time of the child’s conception, p. 9. Third, the child could have been conceived through anonymous donor insemination and the mother may not have access to sperm donor records, pp. 9 – 10. Fourth, the child may be the product of rape a mother wants to remain in private. Sometimes it may appear that a mother is a victim of domestic violence, may fear abuse from her husband, from her child’s biological father, or from another abuser if she discloses the identity of her child’s biological father. Fifth, the child could be a product an extra marital affair that the mother does not want to unveil, p. 10.
- Every child has a right to know their biological parent. Any attempt to hide the truth of the matter may cause a great deal of grief and anger. They may sometimes feel discriminated and or illegitimate. The larger the truth is suppressed, the deeper the anger is against the people who withheld their vital information about their truth identity. 11.
- No one can deny that children have the right to know their biological parents and enjoy their love as any other human being. The law is silent on adults if they deserve such right or not, p. 12.
- In our African society, if a father is unidentified, the children are not thrown to the evil forest; they are raised at their maternal side and named after their uncle’s clan, p. 13.
- If the child receives financial support from his/her legal father, there is no need to establish biological paternity under the statute, p. 13.
- Mother’s legitimate reason not to disclose the identity of the children’s biological father.
- A mother can be mutually a mom and a dad, p. 14.
- Single mothers or all mothers who raised their children alone, in the absence of their father must be respected and honored, p. 14.
- For purposes of protecting the mother’s privacy, the court denied the application, by children, to compel their mother to disclose to them the identity of their biological father.
- Other reasons behind the court’s decision include the fact the mother had been there for her children and that she was already old, p. 15.
- In cases of this nature, the court should strike a balance between the child’s best interest and the parents’ right to privacy, p. 15.
- An application for disclosure of the applicants’ biological father was denied because they are no longer children, they are no longer in need of financial support from their parents and there is no question about their physical, mental and emotional needs, p. 15.
- In order to avoid humiliating or injuring their mother, applicants were advised to use other means such as media to find their father, since they are adults and can express themselves.
