Opinion / Columnist
Tuku 'son' cannot use family name
29 Jul 2024 at 04:18hrs | Views
THE late music superstar and national hero Oliver "Tuku" Mtukudzi's alleged son, Aaron Chaka, has suffered a blow after the High Court struck off the roll his application seeking an order compelling the office of the Registrar of Births and Deaths to change his surname to Mtukudzi.
Aaron, who is the applicant, had cited the Registrar of Births and Deaths, the late icon's widow Daisy Mtukudzi and Master of the High Court as respondents.
High Court judge Justice Fatima Maxwell, who heard the application, struck the matter off the roll and ordered Aaron to obtain scientific confirmation that the late national hero is his biological father so that he can approach the Registrar-General to correct the error.
According to the court papers, Aaron had sought an order directing the Registrar of Birth and Deaths to alter the surname appearing on his birth certificate to Mtukudzi and delete the particulars of his father and replace them with those of Oliver Mtukudzi.
In his founding affidavit, Aaron stated that he was informed by his biological mother, Rose Makumbe, that she and Mtukudzi had a love relationship in 1978 which led to their cohabiting for a couple of months.
Aaron said they considered themselves as husband and wife though their union was not registered.
He said his mother fell pregnant and he was born on January 3, 1979.
He said a misunderstanding resulted in his parents separating before a birth certificate was obtained for him and his mother returned to her maternal relatives with him.
Aaron submitted that with the passage of time, his mother got married customarily to one Josiah Chaka, who assumed the role of a caring father and provider of basic necessities.
He said efforts to get a birth certificate bearing the surname Mtukudzi failed, saying the effect of his parent's separation and failure to acquire a birth certificate for him negatively affected him when he was ready to start school.
Aaron said his mother was forced to acquire a birth certificate for him using her maternal details and other supportive documents before his step-father, Josiah, intervened and agreed to use his own details so that they would appear on the birth certificate as his father.
He said on the strength of the birth certificate, he was enrolled for primary and secondary education and when he reached 25 years, his mother informed him who his biological father was and that he assumed the surname Chaka for his convenience.
He said in 2010, his mother took him to Norton, where Mtukudzi resided and he was introduced to the late musician, who acknowledged him and promised to introduce him to his other siblings from an earlier marriage, Samantha and Selmor.
Mtukudzi then passed away before the introductions were done.
Aaron said the introductions were only done in April 2019 by one Godfrey Mukonowenzou, a brother of Mtukudzi, who was appointed family guardian and who allegedly promised him that he and his kinsman would initiate the process of correcting the details on his birth certificate and align them to his correct paternal lineage cogent to his blood, tribal roots and ancestry.
Aaron said in February 2022, a team consisting of Mukonowenzou, Bybit Mtukudzi, Rose Makumbe and himself visited the offices of the Registrar of Births and Deaths.
He said they were interviewed and asked to depose to affidavits stating the history, facts and other supporting details relating to his birth and parents.
An affidavit by Josiah was requested, but could not be availed as he had passed away in 2019 and an affidavit was deposed to by Aaron's half-sister, Jenifer Chaka.
Aaron said despite availing the affidavits, the Registrar of Births and Deaths further requested for a court order on the basis that owing to Mtukudzi's popularity and status, an order from a court of law was necessary.
Mukonowenzou then approached the community court of Chief Mutumba on February 26, 2023 seeking an order to compel Daisy to release Mtukudzi's death certificate and a default judgment was issued.
When Aaron approached the Registrar of Births and Deaths with the order from the community court, he was advised that only the High Court had the jurisdiction to issue an appropriate order and he then filed this application before the top court.
He submitted an affidavit by Mukonowenzou confirming Mtukudzi's relationship with Makumbe, his birth certificate, Bybit's affidavit confirming that she knew about Aaron's birth and that he was her late brother's son.
Makumbe also submitted an affidavit outlining her relationship with Mtukudzi, the birth of Aaron and the circumstances in which a birth certificate was obtained for the applicant.
Jennifer, in her affidavit, also stated that her father used to tell her that although his name appears on Aaron's birth certificate, he was not his biological son as his mother was already pregnant with another man called Oliver Mtukudzi by the time they started cohabiting.
The Registrar of Births and Deaths opposed the application pointing out that the relief sought by the applicant was actually the cancellation and re-registration of the birth certificate, saying it was, therefore, imperative for Aaron to satisfy the requirements for cancellation and re-registration of his birth certificate.
The Registrar also pointed out that Aaron should avail Mtukudzi's death certificate and affidavits by Josiah's blood relatives confirming that Josiah was not his biological father.
The Registrar further requested a paternity test.
However, Aaron in his answering affidavit stated that there were no surviving relatives of Josiah.
He further stated that Daisy was refusing to hand over Mtukudzi's death certificate.
Aaron said in his view, a paternity test was not necessary as there are affidavits from members of Mtukudzi's family accepting him.
Justice Maxwell said in her view that the section under which Aaron approached the court applied where someone has been prosecuted for a criminal offence, saying the relevant offence would have been giving false information for the purposes of the registration of a birth.
"To start with, it was obtained after the applicant had been informed of his biological father at the age of 25 as he alleged. Secondly, at 26 years old, the purpose of the birth certificate cannot be said to help him get access to education. Thirdly, the mother of the child on the birth certificate is given as Rose Kasaki.
"No affidavit confirmed that Rose Makumbe is the same person as Rose Kasaki. The affidavits confirming a relationship between the late Oliver Mtukudzi and Rose Makumbe are, therefore, not relevant where the mother of the child is given as Rose Kasaki," the judge said.
The judge said Aaron was a child born out of wedlock as his birth was registered in compliance with section 12(2)(a) of the Births and Deaths Registration Act [Chapter 5:02], adding that Joshua acknowledged himself to be the father of the child.
"Applicant cannot competently request a re-registration of his birth. Firstly, his parents never married, so he still remains a child born out of wedlock. Secondly, the law gives the right to make the application for re-registration to a parent or relative. A child cannot make the application for himself.
"Wherefore, I pray that the applicant produces more concrete evidence in the form of a paternity test and authentic affidavits to prove that, indeed, the late Oliver Mtukudzi is his biological father and not Josiah Chaka," Justice Maxwell said.
"Once an applicant obtains scientific confirmation that the late Oliver Mtukudzi is his biological father, he can approach the Registrar-General in terms of Section 8 of the Births and Deaths Registration Act [Chapter 5:02], which provides for the correction of an error of fact or substance in the register.
"Applicant was, therefore, improperly before this court. The application is, therefore, struck off the roll with no order as to costs."
Aaron, who is the applicant, had cited the Registrar of Births and Deaths, the late icon's widow Daisy Mtukudzi and Master of the High Court as respondents.
High Court judge Justice Fatima Maxwell, who heard the application, struck the matter off the roll and ordered Aaron to obtain scientific confirmation that the late national hero is his biological father so that he can approach the Registrar-General to correct the error.
According to the court papers, Aaron had sought an order directing the Registrar of Birth and Deaths to alter the surname appearing on his birth certificate to Mtukudzi and delete the particulars of his father and replace them with those of Oliver Mtukudzi.
In his founding affidavit, Aaron stated that he was informed by his biological mother, Rose Makumbe, that she and Mtukudzi had a love relationship in 1978 which led to their cohabiting for a couple of months.
Aaron said they considered themselves as husband and wife though their union was not registered.
He said his mother fell pregnant and he was born on January 3, 1979.
He said a misunderstanding resulted in his parents separating before a birth certificate was obtained for him and his mother returned to her maternal relatives with him.
Aaron submitted that with the passage of time, his mother got married customarily to one Josiah Chaka, who assumed the role of a caring father and provider of basic necessities.
He said efforts to get a birth certificate bearing the surname Mtukudzi failed, saying the effect of his parent's separation and failure to acquire a birth certificate for him negatively affected him when he was ready to start school.
Aaron said his mother was forced to acquire a birth certificate for him using her maternal details and other supportive documents before his step-father, Josiah, intervened and agreed to use his own details so that they would appear on the birth certificate as his father.
He said on the strength of the birth certificate, he was enrolled for primary and secondary education and when he reached 25 years, his mother informed him who his biological father was and that he assumed the surname Chaka for his convenience.
He said in 2010, his mother took him to Norton, where Mtukudzi resided and he was introduced to the late musician, who acknowledged him and promised to introduce him to his other siblings from an earlier marriage, Samantha and Selmor.
Mtukudzi then passed away before the introductions were done.
Aaron said the introductions were only done in April 2019 by one Godfrey Mukonowenzou, a brother of Mtukudzi, who was appointed family guardian and who allegedly promised him that he and his kinsman would initiate the process of correcting the details on his birth certificate and align them to his correct paternal lineage cogent to his blood, tribal roots and ancestry.
Aaron said in February 2022, a team consisting of Mukonowenzou, Bybit Mtukudzi, Rose Makumbe and himself visited the offices of the Registrar of Births and Deaths.
He said they were interviewed and asked to depose to affidavits stating the history, facts and other supporting details relating to his birth and parents.
An affidavit by Josiah was requested, but could not be availed as he had passed away in 2019 and an affidavit was deposed to by Aaron's half-sister, Jenifer Chaka.
Aaron said despite availing the affidavits, the Registrar of Births and Deaths further requested for a court order on the basis that owing to Mtukudzi's popularity and status, an order from a court of law was necessary.
Mukonowenzou then approached the community court of Chief Mutumba on February 26, 2023 seeking an order to compel Daisy to release Mtukudzi's death certificate and a default judgment was issued.
When Aaron approached the Registrar of Births and Deaths with the order from the community court, he was advised that only the High Court had the jurisdiction to issue an appropriate order and he then filed this application before the top court.
He submitted an affidavit by Mukonowenzou confirming Mtukudzi's relationship with Makumbe, his birth certificate, Bybit's affidavit confirming that she knew about Aaron's birth and that he was her late brother's son.
Makumbe also submitted an affidavit outlining her relationship with Mtukudzi, the birth of Aaron and the circumstances in which a birth certificate was obtained for the applicant.
Jennifer, in her affidavit, also stated that her father used to tell her that although his name appears on Aaron's birth certificate, he was not his biological son as his mother was already pregnant with another man called Oliver Mtukudzi by the time they started cohabiting.
The Registrar of Births and Deaths opposed the application pointing out that the relief sought by the applicant was actually the cancellation and re-registration of the birth certificate, saying it was, therefore, imperative for Aaron to satisfy the requirements for cancellation and re-registration of his birth certificate.
The Registrar also pointed out that Aaron should avail Mtukudzi's death certificate and affidavits by Josiah's blood relatives confirming that Josiah was not his biological father.
The Registrar further requested a paternity test.
However, Aaron in his answering affidavit stated that there were no surviving relatives of Josiah.
He further stated that Daisy was refusing to hand over Mtukudzi's death certificate.
Aaron said in his view, a paternity test was not necessary as there are affidavits from members of Mtukudzi's family accepting him.
Justice Maxwell said in her view that the section under which Aaron approached the court applied where someone has been prosecuted for a criminal offence, saying the relevant offence would have been giving false information for the purposes of the registration of a birth.
"To start with, it was obtained after the applicant had been informed of his biological father at the age of 25 as he alleged. Secondly, at 26 years old, the purpose of the birth certificate cannot be said to help him get access to education. Thirdly, the mother of the child on the birth certificate is given as Rose Kasaki.
"No affidavit confirmed that Rose Makumbe is the same person as Rose Kasaki. The affidavits confirming a relationship between the late Oliver Mtukudzi and Rose Makumbe are, therefore, not relevant where the mother of the child is given as Rose Kasaki," the judge said.
The judge said Aaron was a child born out of wedlock as his birth was registered in compliance with section 12(2)(a) of the Births and Deaths Registration Act [Chapter 5:02], adding that Joshua acknowledged himself to be the father of the child.
"Applicant cannot competently request a re-registration of his birth. Firstly, his parents never married, so he still remains a child born out of wedlock. Secondly, the law gives the right to make the application for re-registration to a parent or relative. A child cannot make the application for himself.
"Wherefore, I pray that the applicant produces more concrete evidence in the form of a paternity test and authentic affidavits to prove that, indeed, the late Oliver Mtukudzi is his biological father and not Josiah Chaka," Justice Maxwell said.
"Once an applicant obtains scientific confirmation that the late Oliver Mtukudzi is his biological father, he can approach the Registrar-General in terms of Section 8 of the Births and Deaths Registration Act [Chapter 5:02], which provides for the correction of an error of fact or substance in the register.
"Applicant was, therefore, improperly before this court. The application is, therefore, struck off the roll with no order as to costs."
Source - The Herald
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