Children born out of wedlock may yet still have to contend with not having the names of their biological fathers included in their birth certificates because the laws have not been amended yet.
In February, High Court judge Jesse Njagi said in his judgment that “the Attorney General should amend the impugned sections of the Births and Deaths Registration Act, the Children Act, and the Law of Succession Act to align them with the Constitution of Kenya 2010.”
This was to be effected by May and lawyers say that the order cannot be enforced because the Attorney General is no longer a member of Parliament.
“Before the promulgation of the 2010 Constitution, the AG was an ex-officio member of Parliament and could present documents and advise lawmakers on the constitutionality of certain bills or acts. Currently, he has no direct contact with MPs,” explained a state counsel who sought anonymity.
Government bills are presented through the leader of majority and as a result of the principle of separation of powers, the courts cannot direct Parliament on what to do or prioritize. The AG can only bring to Parliament’s attention the court orders.
But Family lawyer John Chigiti feels that telling such mothers to wait for Parliament to amend the law will be unrealistic since that is not a priority to them.
“The AG has powers to enforce compliance with court judgments, just like the Chief Justice has powers to make practice directions that will propel access to justice. The AG doesn’t necessarily have to wait until the whole law is amended even though the ultimate solution is for Parliament to delete such sections from the statute through a miscellaneous amendment bill,” Mr. Chigiti said.
The Office of the Registrar of Deaths and Births has its hands tied because it can only work within a legislative framework.
“The best approach for me now is through lobbying, frequent courtesy call to the AG, awareness creation, and that will open up a conversation,” says Mr Chigiti.
In 2016, the High Court invalidated provisions of Section 12 of the Births and Deaths Registration Act and directed the Registrar of Deaths and Births to enter into the births register the names of fathers of children born outside wedlock.
Early this year, the High Court similarly found that some of the laws were enacted before the Constitution of Kenya 2010, and should be updated.
Sections of the law have made it difficult for a father’s name to be included unless he consents, but such an option is not available to unmarried mothers.
They are sections 2(b), 27(2), 94(1)(i), 102(1), 158(4)(b) and 158 (4)(c) of the Children Act; 3 (2) and 3(3) of the Law of Succession Act, and section 12 of the Births and Deaths Registration.
The law intended to avoid scenarios where malicious mothers, for financial gain or moral reasons, seek to have men statutorily recognized as fathers to children who may not be their offspring.
The Federation of Women Lawyers Kenya (Fida-K), representing a mother of two children born out of wedlock, claimed that the sections violate the constitutional and international rights of unmarried mothers to have fathers share equal parental responsibility for their children regardless of marital status.
The judge could not agree more. He noted that the Children’s Act No. 8 of 2001 was enacted before the promulgation of the 2010 Constitution and there has been no review to align it with the new constitution.
Section 2(b) of the Children’s Act gives a father the discretion of choosing whether a child is to be his relative or not.
This means that if a father does not acknowledge the paternity of a child or has not been contributing to the maintenance of the child, that child cannot be considered to be a relative of the father.
“This is discriminatory to children born outside wedlock on grounds of birth. It violates the right to equal treatment before the law for children born outside wedlock. It is in the child’s best interests to be recognized as a relative to the father whether the child’s parents are married to each other or not,” observed the judge.
Parental responsibility is automatic and self-activating on parents upon the birth of a child, and fathers cannot have the discretion of either accepting or rejecting that responsibility, he said.
He equally found that Section 158 (4)(c) is inconsistent with the Constitution in so far as the father of a child born out of wedlock needs to ‘acquire parental responsibility’ for them to be regarded as such.
“The section is discriminatory on fathers who have not acquired parental responsibility. The section has the implication of treating fathers differently based on whether one has acquired parental responsibility, which is against the spirit of Article 27(1) on equal treatment before the law,” Justice Njagi in the February 7, 2019 judgment.
While invalidating Section 12 of the Births and Deaths Registration Act, High Court judge Mumbi Ngugi said the constitutional aspirations protecting human dignity, equality and freedom from discrimination and children’s rights, insofar as they apply to children born outside marriage, far outstrip in importance the need to keep official records correct and accurate, or the desire to “protect” men from “unscrupulous” women.
The judge said that the alleged purpose, protecting the putative father from the alleged machinations of unscrupulous women is, based on an unapologetic but unacceptable patriarchal mindset that wishes to protect men from taking responsibility for their actions to the detriment of their children.
Should the mother of a child born outside marriage name a person as the father of her child falsely, there is a remedy under section 22 of the Registration of Births and Deaths Act.
“Further, with the possibility of DNA testing, such false claims are likely to be limited, assuming they occur at all. What should be put in place are clear rules for applying for the name of the putative father to be inserted in the birth register and certificate, for notice to be given to the person concerned so that he can agree or object, and in the event of an objection, for DNA testing to be done,” said Justice Ngugi.
