Under The Registration of Births and Deaths Act a child's mother cannot enter the name of the father of the child in the birth certificate without the father's consent in the case of children born out of wedlock.
This has indeed troubled many single mothers. This has historically been the fountain of inequality between the children born in and out of wedlock.
The birth certificates of many children born out of wedlock bear xxxxx in the slot of father of the child. As for children born in marriages, the name of the father obviously features.
Section 24 (3) of the Children's Act a more recent statute extended the inequality. It provides that Where a child's father and mother were not married to each other at the time of the child's birth and have not subsequently married each other -
(a) The mother shall have parental responsibility at the first instance;
(b) The father shall subsequently acquire parental responsibility for the child in accordance with the provisions of section 25. Under this provision the Act provides that the father in such a situation can only acquire parental responsibility if he applies to the court for it, acquires it through an agreement with the mother, has accepted paternity or has maintained the child or lived with the child for over 12 months.
These provisions obviously gave such fathers a higher and or superior position against the mother.
Article 2 (1) of the International Convention on Rights of The Child stipulates that, States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
Article 2 (2 ) then provides that States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.
Unhappy with this sad state of affairs one child decided to change this in the year 2006 in the case of R.M. (Suing thro' Next Friend) J K Cradle (The Children Fund) Millie and GAO vs The Attorney General (2006) eKLR.
She raised an issue that section 24(3) of the Children's Act, was discriminatory as it put the plaintiff at a disadvantaged position vis a vis other children whose fathers had married or subsequently married their mothers.
She asked the court to accord her equal treatment with those children whose parents were married or have subsequently married by placing parental responsibility on both the father and the mother.
R M was born when the father and the mother were cohabiting together. The alleged father paid the medical expenses when RM was born. After some time,the alleged father disappeared and failed to give any parental support to both the mother and the child. The plaintiff lamented that the law did not place any parental responsibility on the father since the couple were not married at the time of birth of the plaintiff, and could only acquire parental responsibility vide section 24(3) of the Children's Act.
She argued that the law should accord equal treatment to the plaintiff and those children whose parents were married by placing the responsibility on both the father and mother at the time of birth of children. The court held that this was not the case and that section 24(3) of the Children's Act is not discriminatory.This case was heard and determined under the repealed Constitution.
The situation has been that way since leading to a barrage of cases being filed at the Children Court every day by children who have been pursuing their fathers for upkeep.
The fathers have been many a times fighting back effectively on the basis of the fact that the law gives parental responsibility to the mothers in the first instance.
Many have been denying paternity in the hope that they would shake off the burden of shouldering parental responsibility to the detriment of the child. That not withstanding, The Children's Court was not asleep. It put them to task under the principle of the best interest of the child.
The status quo started changing albeit slowly after the promulgation of the Constitution. The panic button had been pressed by the committee of experts.
The honeymoon was over. The moratorium period was rudely brought to a halt by Article 53 (1) (e) of the constitution. It provides that every child has the right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not. This was a big gain for the child born out of wedlock.
Although this heralded the beginning of the journey to reform the actual situation on the ground was not to change overnight. A lot had to go in before the impact could be seen.
There was a loud cry and need for implementation strategies. New upkeep and parental responsibility cases in the Children Court were still being filed, argued and determined.
Some men who continued to sire children out of wedlock were still getting away with the Section 24 jump suit. This was so because The Children's Act had not been amended to bring it to speed with The Constitution.
On June 16, 2013 as we celebrated the Day of the African Child one of the Judges of The High court had just given a wonderful gift to all the children born out of wedlock.On May 24, 2013 Justice Mumbi Ngugi delivered a landmark judgment in the case of Zak and Another vs The Attorney General and anotherKLR.
In this case the petitioner challenged Section 24(3), and Section 25 of the Children Act urging the court to declare them as unconstitutional, since they infringed Article 27 of the constitution which provides that every person is equal before the law and has the right to equal protection and equal benefit of the law, equality includes the full and equal enjoyment of all rights and fundamental freedoms, women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
In her judgment the judge stated that "The 2nd respondent -The AG has also conceded that in so far as the Children Act places parental responsibility for Children born outside marriage only on the mother, it is unconstitutional. In this regard, the provisions of section 90(a) and (e) of the Children's Act must be considered alongside the provisions of Section 24(3) and 25 as offending against the Constitution... "
The judge then proceeded to find that in line with the provisions of Section 7 of Schedule 6 of The Constitution,the Children Act must be read as imposing parental responsibility for children on both of their biological parents, whether they were married to each other or not at the time of the child's birth".
The court went further to find that the above mentioned provisions of The Children's Act to be unconstitutional, hence null and void.