Child Law Article
53 (e) of the Constitution which provides that every child has a right to
parental care and protection which includes equal responsibility of the mother
and father to provide for the child, whether married to each other or not.
Birth registration is a
fundamental human right. It not only gives a child a recognized legal existence
and identity, it is the sign that a child ‘belongs’ to a family, a community
and a nation. It shows that a child has a place, and a stake, in all three.
Before the promulgation of the Kenyan Constitution 2010, no right on support and
maintenance of a child born out of wedlock accrued on the father where there
was no legal relationship between the mother and the father. The only remedy
that the mother had was in the customary law, which provides for pregnancy
compensation, but the compensation is usually paid directly to the mother
parents, and does not necessarily benefit the child. Name and Nationality Article
53(1) (a) of the Constitution guarantees every child the right to a
name and nationality from birth.
The legal position after the promulgation of the Constitution is
that the position of joint responsibility of both parents, whether married to
each other or not, is guided by Article 53 (e) of the Constitution, which
provides that every child has a right to parental care and protection, which
includes equal responsibility of the mother and father to provide for the
child.
This provision was upheld in a landmark case of Zak & Another
vs. The Attorney General & Another (2013) KLR. In this case, the petitioner
challenged the Constitutionalism of Section 24(3) of the Children Act
and Section
25. She argued that these sections infringed Article 27(1) of the
Constitution, which states that every person is equal before the law and has a
right to equal protection and equal benefit of the law. In line with that
argument, Justice Mumbi Ngugi stated
that it was unconstitutional for the Children Act placing the responsibility of
the children born outside marriage only on the mother. In this regard, the
provisions of section 90(a) and (e)
of the Children Act were unconstitutional, considered alongside the provisions
of Section 24(3), which places the
responsibility of the child on the mother at the first instance where the
mother and the father are not married.
Father and Mother
Under Section 12 of Births and Deaths Registration Act, no person shall
be entered in the register as the father of any child except either at the
joint request of the father and mother or upon the production to the registrar
of such evidence as he may require that the father and mother were married
according to law or, in accordance with some recognized custom. The foregoing provision
indirectly shelters the man who gets children out of wedlock. This provision in
effect ends up punishing and disadvantaging not only the child but also the
mother of the child born out of wedlock.
Under Article 27(4),
the State shall not discriminate directly or indirectly against any person on any
ground, including race, sex, pregnancy, marital status, health status, ethnic
or social origin, color, age, disability, religion, conscience, belief,
culture, dress, language or birth. Section
5 of The Children’s Act says no child shall be subjected to discrimination
on the ground of origin, sex, religion, creed, custom, language, opinion,
conscience, color, birth, social, political, economic or other status, race,
disability, tribe, residence or local connection.
Obviously the child’s surname flows from the parents’ family names.
The fact that they are born out of wedlock should not form the basis for
discrimination at all. A statute that countenances and allows the non-disclosure
of the father simply because the parents are not married has to be
interrogated.
Basically there is a need to protect these children under Article
27 of the constitution and Section
5 of the Children’s Act so as to bring them to par with the children born
within the marriage.
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