‘ILLEGITIMATE, NO MORE’: A WAKE-UP CALL FROM THE CHILDREN’S CODE ACT NO ACT NO. 12 OF 2022
Philip Zulu
Harvard ALP'24 Alumni| YMG - CiARB Member | Human Rights Activist | SDG Enthusiast | Mental Health Advocate | Law Tutor | Founder (Legal Revelations Initiative) | LLB Candidate| DIL Candidate|
PHILIP ZULU
INTRODUCTION
There is an adage in Zambia that is mostly associated with the Bemba culture and is phrased as "imiti ikula empanga". This phrase is interpreted in many ways as the situation necessitates, but regardless of the interpretation, there is no separation of the implications of the adage on the future and the need to ensure that children are cared for, availed of opportunities, and groomed in an environment that reserves and prepares them for the near future. In accordance with the manner in which the adage is used by the author of this work, it is clear that it merely reflects its English equivalent, that is, "children are the leaders of tomorrow’. Nevertheless, the author will restrict this work to addressing an issue that has gained the attention of many legal systems across the globe and has affected the welfare of children for millennia, though it is consistently phasing out as many states have modified their legal systems to address it. This issue is one of legitimacy.
CONCEPTUALIZED
When referring to a child, the term "legitimacy" refers to the social and legal acceptance of the child's position as a product of a recognized marriage or partnership. Specifically with regard to one's birth and parentage, Black's Law Dictionary defines legitimacy as "the quality or state of being lawful or valid." Literally speaking, it is only the status that is given to a child at the time of birth. As a result, a child born during the continuation of a valid marriage will be referred to as legitimate, whereas a child born unwed or from a null marriage will be referred to as illegitimate. Since the beginning of time, a child's status as legitimate or illegitimate has influenced a variety of aspects of their life, including but not limited to their nationality, inheritance, parental rights, and social standing.
This is more of a reality in countries like Zambia, where the legal system is characterized by a double standard that appreciates both African customary law and English/Strict law. The legal and actual ramifications of this are that the status of being either illegitimate or legitimate will adversely affect the rights and privileges that any other child will exercise, both under strict law and African customary law. However, the category of children classified as illegitimate has developed not only in Zambia but also globally, clearly demonstrating an adherence to both international and regional best practices. The advocacy for inclusion and equality in the treatment of children in some regions of different countries has resulted in these changes in the legislative systems after sufficient and persistent efforts. In order to improve understanding of the subject at hand, pertinent legal frameworks including court decisions, treaties, and legislation will be carefully reviewed.
LEGITIMACY ON THE INTERNATIONAL AND AFRICAN LEVEL
Though international and regional frameworks are silent on the conditions of legitimacy due to the lack of a universally and regionally (African region) framework to universally and regionally provide for a definite description of what legitimacy of a child means but also to the disparity in the domestic laws of the various members of the international community, inter alia, Notwithstanding these issues, the ramifications of the categorization touch on the treatment of children and thus invoke internationally recognized core principles with regards to the treatment of children under any legal system. With a specific bias towards the treatment of children, there are four (4) guiding principles that all are obliged to adhere to in their interactions with children. These include the best interests of the child, non-discrimination, the rights to survival and development, and the views of the child. With specific reference to legitimacy, the first two principles, i.e., best interest of the child and no discrimination, share a more close relationship with the subject matter.
The first two principles—best interest of the child and no discrimination—have a closer connection to the topic than the third principle in terms of legitimacy. On the one hand, when it comes to the "best interest of the child" principle, the International Court of Justice has interpreted it as a guiding principle that puts the child's interests at the forefront of all decisions that need to be made regarding matters that impact the child. In the case of Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden), this interpretation was made. In addition, Article 3(1) of the United Nations Convention on the Rights of a Child (hereinafter referred to as the "UNCRC") iii makes it abundantly clear that the best interests of the child must come first in all decisions involving children, whether they are made by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies.
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On the other hand, in international human rights law, the non-discrimination principle is a crucial doctrine that mandates fair treatment for all individuals without distinction on grounds of race, ethnicity, gender, religion or any other status. The UNCRC's Article 2(1) further cements this right by asserting its obligation to safeguard children from any discrimination. Thus, it is every state party's duty to ensure equal and just protection for all children everywhere. It provides that “State Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, color, sex, language, religion, political or other opinion, national, ethnic, or social origin, property, disability, birth, or other status."
Similarly to the treatment of children on the international level, the same is realized in the African region through the operation of the principles of non-discrimination and equality embedded in the human rights instruments, namely the African Charter on Human and People’s Rights and the African Charter on the Rights and Welfare of the Child under Articles 3 and 2, as well as the principles of non-discrimination and best interest of the child under Articles 3 and 4, respectively. A child is considered legitimate under the African Charter on the Rights and Welfare of the Child without any doubt, unless proven otherwise. The presumption is applicable to all children, no matter their parents’ marital status. The rights of children in Africa are protected and promoted by the Charter through a legal framework. Their entitlement to education, healthcare, and safeguarding from exploitation, abuse and violence is included. The African Charter on the Rights and Welfare of the Child's Article 6 provides protection for every child's right to have a name and nationality. The right to be cared for and to know belongs to parents. Article 7 acknowledges that every child should have the right to receive a name and be registered promptly after their birth. Moreover, Article 27 of the Charter guarantees the safeguards for illegitimate children. The rights granted to legitimate children extend to those born out-of-wedlock and they cannot be discriminated against for having unmarried parents.
Finally, Article 28 of the Charter establishes the right of every child to education, which includes the right to free and compulsory primary education. The cumulative effect of the provisions and cases cited therein merely supports the idea that every child is not only to be accorded all the benefits that are accorded to a child who is born within wedlock, contrary to what was happening before the change in the law, as there was different treatment of children classified as illegitimate from those who were classified as legitimate due to culture and custom in the African communities. The issues raised here clearly demonstrate a change in the legal systems' appreciation of the non-discrimination principle as well as other issues, such as treating all children equally regardless of their status.
LEGITIMACY IN ZAMBIA
The Legitimacy Act, which existed in Zambia prior to the passage of Children's Code Act, dealt with matters relating to illegitimate offspring, particularly in regards to inheritance and future legitimization by marriage, among other things. Because children born before or outside of wedlock are labeled as legitimate or illegitimate, the legislation backed the idea that they should be treated differently than children born within matrimony. Despite the fact that this was the current state of the law, a number of human rights interventions sought to alter the way in which the notions of illegitimacy were applied, particularly in circumstances where culture and custom dominated the issues and forced the courts to decide them. The advent of the Children’s Code Act is not only timely but also a beneficial move to consider, especially on the issue of legitimacy. The enactment of the Act has promoted Zambia’s bid to adhere to both regional and international human rights standards that promote the dignity of the child and level the playing field for all children in the nation.
The Legitimacy Act is expressly repealed in accordance with the preamble and Section 297 of the Children's Code Act. This is clear from the fact that, except for the repealing provisions, no provisions in the Code address questions of legitimacy. Additionally, Section 121 of the Children's Code Act provides that "a child born to a mother and father, whether married to each other or not, shall have equal rights and privileges as a child born in a marriage". The sum of the reasoning that can be inferred from the provisions cited is that the legal position in Zambia with regards to the legitimacy of a child is that there is no longer recognition under strict law of the concept of illegitimacy, and thus all children will be treated and should be treated as equals regardless of whether they are born within or outside wedlock, thereby bringing the nation within the ambit of adherence to both regional and international best practices with regards to the treatment of children and enhancing the non-discrimination principle as elaborated in various international and regional agreements to which Zambia is a party.
CONCLUSION
In conclusion, legitimacy as a concept used to categorize children into two classes and give them unequal opportunities, negating the principles upon which all legal frameworks are to adhere with the treatment of children, is a concept that calls for adequate consideration in various nations and the international community as well. The intentional act by the parliament in Zambia to do away with the practice under strict law is not only commendable, but it was due. Nevertheless, it calls for more eradication, especially as far as customary practices are concerned, by employing various tactics such as community workshops, discussion forums, education, and awareness programs, among others, in an effort to inform all stakeholders on the position of the law and the impact of the continued practice on the legal framework as well as the child.
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