Single mothers yesterday scored big after the High Court declared that all children born out of wedlock have a right to have their fathers’ names included on their birth certificates.
Lady Justice Mumbi Ngugi declared Section 12 of the Births and Deaths Registration Act, which prohibits a mother from including the biological father’s name on a birth certificate without the man’s consent, unconstitutional.
“Section 12 imposes unfair burden on women who bear children out of wedlock as the burden of taking care of those children has always been left to them,” she ruled, directing the Registrar of Births and Deaths to comply with the ruling by ensuring, within 45 days, the law is in conformity with the other laws protecting children.
“It is high time that law, which has been inconsistent with other laws that protect children, is made to conform with the others. Section 12 is inconsistent with Article 27 which protects the rights of children,” she ruled.
She said children born out of wedlock are at liberty to have the names of their fathers entered in their certificates.
The law has existed for 18 years.
The case was filed by a mother of a four-year-old child two years ago and sought to have a man’s name entered in her child’s birth certificate with or without his consent. She sued Attorney General Githu Muigai over the validity of Section 12 of the Act.
The disputed Act provides that a man’s name cannot be entered in the register as a father of any child except either at the joint request of the father and mother or upon production of evidence that the two are married according to common law or customary law.
The Law Society of Kenya was enjoined in the suit as a friend of the court, as did other single mothers and men as interested parties.
Through her lawyer John Chigiti, she claimed that a child born out of wedlock faces discrimination and lives in the dark with an incomplete name or identity.
She argued that having a father’s name on the birth certificate of a child helps to establish the child’s sense of identity as he or she grows up.
“The same guarantees certain rights and privileges that they cannot enjoy when their fathers’ name is missing from the birth certificates. Children born out of wedlock are being penalised and punished for issues they have no control over as a result of the unlawful section,” argued Chigiti.
However, the Attorney General opposed the suit, arguing that men who sire children out of wedlock need to be consulted by women on whether their names can appear on the child’s birth certificate. He argued that there is no breach of the Constitution if the man’s name is not included in the birth certificate.
Through the litigation counsel Linah Wawira, AG claimed that petitioner did not demonstrate that inclusion of their father’s name in the birth certificates is guarantee that the father will provide certain rights. “Men who sire children out of wedlock need to be consulted by women on whether their names can appear on the child’s birth certificate,” he said.
However, the Law Society of Kenya argued that disputed law denies the child born out of wedlock the entitlement to the name of his or her father and is, therefore, discriminative.
LSK said the purpose of Section 12 of the Births and Deaths Act is to ensure that only the names of the biological parents of a child are in the register. It agreed with the plaintiff that the law should be altered or amended in order to accommodate children of single mothers.
“There is no doubt in our mind that the wordings of that law must be altered, amended and qualified so that it can be inclusive of all children regardless of the marital status of their parents.”
Justice Ngugi declared the law inconsistent with the Constitution, thus unconstitutional, null and void. The declaration will no doubt stoke enormous controversy, with rights activists and other observers expressing the view that the menfolk might be discriminated against by virtue of falling prey to conniving women who may falsify the paternity of their children for their own ends.
The development will also raise the critical issues of just how paternity will be ascertained especially if men named as fathers contest the claim that they fathered the children in question.
The post 40 days over for deadbeat Kenyan dads appeared first on Mediamax Network Limited.