Kenya: Children Have a Right to Access Both Parents

10 November 2019
column

Recently, Senator Irungu Kang'ata sent a shockwave among Kenyan menfolk by proposing legislation targeting deadbeat fathers or men who sire children out of wedlock and flee from parental responsibility.

The senator suggested that such irresponsible parents should be punished through Credit Reference Bureaus' listing, leading to freezing of credit, denial of travel documents, business licences, driving licence and Certificate of Good Conduct, attachment of salary or property to meet child maintenance, and so on. Kang'ata has definitely put Kenyan masculinity on notice.

Article 53(1)(e) of the Constitution clearly 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".

Single motherhood in Kenya is an undisputed phenomenon. The Kenya Demographic Health Survey, 2014 established that the national teenage pregnancy/motherhood rate was 18 per cent; 15 per cent of all adolescent women had given birth; sexually active unmarried adolescents accounted for 49.3 per cent, thus becoming potential candidates for single motherhood.

PARENTING

Fourteen per cent of women aged 15-49 years had experienced sexual violence and thus the possibility of pregnancy outside marriage for some.

Further, the Kenya Integrated Household Budget Survey of 2015/16 reported that 32.4 per cent of households in the country were headed by females.

Although a minority of these were widowed single mothers, a significant percentage comprised unmarried single mothers.

How then should the country protect single mothers and the children of their union with runaway fathers? Let us first examine some single motherhood types.

Single motherhood can ensue after consensual sex outside marriage with either a single or married man.

Some females become pregnant and single mothers through sexual abuse. These may know the father of the child or not.

Divorce or widowhood do render surviving women single mothers. Even the father of a single mother's child can die, leaving only his relatives and courts as avenues for vindication of the child's rights.

SINGLEHOOD

A female who comes into marriage but does not disclose the existence of a prior child or children is a single mother of kin from the prior union(s).

Even during marriage, if a woman has a child by another man, she is a de-facto single mother to the child borne outside the marriage whether her legal husband has knowledge of it and he chooses to live with or conceal the fact.

A woman who shuns marriage can be a single mother by design. She may even procreate with a stranger or access a sperm bank.

She may wish not to know who the father is. Deliberately, she plans to raise a "mother's child".

Technically, there are women who are single mothers within marriage because their husbands have deserted, leaving behind a phantom marriage.

If a child is born outside wedlock and the father evades parental responsibility, the mother is exposed to double parenting.

She serves as both mother and father. She invests more time and material resources in parenting than she otherwise would if parental responsibility was shared.

EMOTIONAL SUPPORT

Often a single mother forfeits the right of marriage after a man she thought would marry her absconds mid-stream. Most eligible men usually prefer to marry unattached ladies.

Some single mothers decide to hide the identity of the father from their child. This often causes psychological trauma to the child who wants to associate and bond with a known father and not an alternative father figure.

Children of single mothers often lack the emotional support of their own father. They are usually denied the right to carry their father's name.

They tend to be named after their maternal grandparents or other close relatives. Article 53(1)(a) provides that a child has the right to a name.

If paternity is proved through a DNA test or acceptance by the natural father or any other lawful method, the child has the right to carry the family name of such biological father.

I have stated before that a child by a single mother lacks parenting by the natural father. This does not mean the mother's parenting will be inferior.

JOINT RESPONSIBILITY

Indeed, the majority of children of single mothers turn out to be well-brought-up. This happens largely because the single mother invests more time, energy, and care so as to fill the obvious gap.

Under no circumstances should a child be denied knowledge of who their mother and father are.

Even a child sired by a stranger within a marriage has the right to parental recognition and support by the biological father.

Undoubtedly, many will consider this to be a controversial argument. Deadbeat fathers must therefore not deny their status as parents or neglect their children.

Consensual sex that results in a child should not negate joint parental responsibility. The argument that a married man's lawful marriage will collapse if he recognises his "other" children or child is not valid.

A man's marriage is already shaky the moment he is unfaithful. Some men argue that the girl they have had a child with is a gold digger who entertains multiple male partners.

LEGISLATIVE PATHWAY

However, the focus must always be on the child. If two tango, there is an absolute duty towards any offspring.

Even if the man terminates the side relationship with the "single mother" of their child, ultimately such progeny will have succession rights since no child is illegitimate when it comes to inheritance from his or her biological father.

The deadbeat father can accept to bear responsibility for his child or children through mutual agreement or, if he is reluctant, a maintenance order from the courts.

Senator Irungu Kang'ata is right to seek a legislative pathway for enforcing the parental responsibility of deadbeat dads.

However, this crusade should be achieved through persuasion, cultural re-engineering and realistic legal enforcement mechanisms. Otherwise the legislator's noble cause is likely to be thwarted by male resistance.

Prof Kibwana is the Governor of Makueni County.

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