Online Reporter
Benjamin Chinyai
The Herald of April 29, 2025, carried an article in which the High Court of Zimbabwe nullified the re-registration of a birth certificate for a child born out of wedlock, ordering the Registrar-General to strike it from the records.
The ruling questioned the legality of attributing paternity to a deceased man decades after his death, and thus declared the birth certificate invalid.
The Births and Deaths Registration Act (Chapter 5:02), which was the major reference legal piece, provides that no re-registration of a birth certificate is allowed unless the parents subsequently marry.
Below is the analysis of the judgment from a social scientist perspective.
The High Court’s judgment nullifying Ruvimbo Manyonda’s birth certificate has significant implications for African traditional and cultural rights in Zimbabwe.
The court’s decision was based on the Births and Deaths Registration Act, which requires that a child’s parents be married for re-registration of a birth certificate.
However, this law may not align with Zimbabwe’s customary laws, particularly in cases of inheritance. The Act seems loaded with colonial presence (Gregory, 2004; Mamdani, 1996).
Customary laws of inheritance in Zimbabwe
In Zimbabwe, customary laws of inheritance vary among different communities.
Traditionally, inheritance is governed by the principle of primogeniture, where the eldest son (patrilineal primogeniture) inherits the majority of the estate.
However, this principle has been challenged in recent years, with courts recognising the rights of women and daughters (matrilineal primogeniture) to inherit property.
Applicability of the law
The judge relied on the Births and Deaths Registration Act, which may not be applicable to customary laws of Zimbabwe. The Act’s provisions on re-registration of births may not account for the complexities of African traditional and cultural practices.
The court’s decision highlights the tension between statutory law and customary law in Zimbabwe. The failure of many governments, particularly African countries, to reform colonial laws to suit traditional cultural value systems can have significant impacts, including:
Cultural incongruence whereby there is a disconnect between laws and cultural practices. Colonial laws may not align with customs, such as extended family and clan relationships, leading to confusion and conflict.
Erosion of traditional practices. Colonial laws may suppress or override traditional practices, leading to cultural identity loss.
Economic and social disparities. Colonial laws may perpetuate economic and social inequalities, particularly for marginalised groups.
Injustice and inequality. The failure to reform colonial laws can perpetuate injustices and inequalities, especially for indigenous or marginalised groups.
Impact on children born out of wedlock
The High Court’s judgment may have far-reaching implications for children born out of wedlock in Zimbabwe.
By nullifying Ruvimbo’s birth certificate, the court has effectively excluded her from inheriting her father’s estate. This decision may set a precedent that could affect other children born out of wedlock, potentially denying them their rightful inheritance.
Children born out of wedlock may be excluded from inheriting their father’s estate. Also, the decision may reinforce negative stereotypes and stigma surrounding children born outside of marriage.
Moreover, children born out of wedlock may be left without financial support or protection.
Discrimination
The judgment raises concerns about discrimination against children born out of wedlock.
By requiring a formal marriage or registration during the father’s lifetime, the court’s decision may unfairly penalise children who are not in control of their parents’ marital status or registration.
This could lead to a situation where such children are denied their inheritance rights, simply because of the circumstances of their birth.
The judgment raises concerns about:
Unfair treatment: Children born out of wedlock are being penalised for circumstances beyond their control.
Lack of consideration: The court’s decision may not adequately consider the best interests of the child.
Care for children born out of wedlock
In cases where a father dies before formal registration, it is essential to consider the best interests of the child. The court should prioritise the child’s welfare and consider alternative solutions, such as allowing DNA testing, to establish paternity and ensure the child’s inheritance rights.
There is need to recognise customary law and cultural practices that acknowledge the rights of children born out of wedlock.
Furthermore, there should be alternatives to provide support for vulnerable children, including those born out of wedlock, to ensure they receive the care and protection they need.
The lack of safety nets for the children, as well as denying these innocent souls a father due to the father’s acts of commission or omission, and application of statutory or administrative laws not grounded in African traditional realities, amount to child abandonment. The judgment may reluctantly be accepted where governments have created a fund to take care of this stigmatised group, but in the absence of children born out of wedlock safety nets, the burden to look after such children should squarely rest on the shoulders of, and /or inheritance left by his/her late father.
As long as there are people within the late father’s family, who can testify that the late father made a dying declaration or confirmation, or voluntarily declared that the child in question belongs to him, then, indeed, the child should be accepted as belonging to the family.
Nature and tradition have got their own way of dealing with invasive claimants to inheritance when they are not eligible to benefit from such inheritance.
Protection of children’s rights
To mitigate the potential negative impact of this judgment, it is crucial to ensure that the rights of children born out of wedlock are protected. This could involve reviewing legislation to ensure that laws governing inheritance and registration are fair and equitable for all children, regardless of their birth circumstances.
Also important is raising awareness about the importance of registering children and ensuring that they receive their rightful inheritance. Supporting vulnerable children through social services and programmes that prioritise their welfare and well-being is critical as well.
To address these concerns, organisations and individuals can advocate for the rights of children born out of wedlock. Laws governing inheritance and registration can be reviewed to ensure fairness and equity.
By acknowledging the limitations of colonial laws and working to reform them, governments can promote more effective governance, social justice, and human rights. Social services and programmes can provide support and protection for vulnerable children.
Ultimately, the court’s decision should prioritise the wellbeing and rights of all children, regardless of their birth circumstances and age.
Hence, to save the heir apparent, Ruvimbo Manyonda, from being denied her rights to benefit from her father’s wealth, the following options may be considered:
Appeal the judgment: Ruvimbo can appeal the High Court’s decision, arguing that the court’s interpretation of the Births and Deaths Registration Act does not align with Zimbabwe’s customary laws and cultural practices.
Seek alternative dispute resolution: The parties involved can seek alternative dispute resolution mechanisms, such as mediation or arbitration, to resolve the inheritance dispute in a way that respects African traditional and cultural rights.
Review of the Births and Deaths Registration Act: The Government can review the Births and Deaths Registration Act to ensure that its provisions align with customary laws and cultural practices which respect extended family setup, particularly in cases of inheritance.
Recognition of Customary Law: The courts can recognise the importance of customary law in Zimbabwe and take a more nuanced approach to applying statutory law in cases involving inheritance and cultural rights.
Dr Benjamin Chinyai holds a Doctor of Philosophy (PhD) degree in African Leadership Development.
