'Birth records of children born out of wedlock should have father's name'

Attorney General Githu Muigai at the Court of Appeal during the hearing of an application filed by the AG seeking the suspension of the clauses by the High Court temporarily lifted by the Court of Appeal.High Court Judge ,Justice George Odunga suspended eight clauses in the new security law. The case was filed by the Coalition for Reforms and Development (CORD), in the High Court suit challenging new security law.PHOTO.FIDELIS KABUNYI/STANDARD]

The Law Society of Kenya (LSK) has differed with Attorney General (AG) Githu Muigai on registration of children born out of wedlock.

The AG (pictured) had told the court 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. Prof Githu had further argued that there is no breach of the Constitution if the man's name is not included in the birth certificate.

But LSK has argued that the law is inconclusive as there cannot be a child without a father and a mother.

The lawyers were of the view that the law should be altered or amended in order to accommodate children from unwed mothers.

LSK made the submissions as a friend of the court in a case challenging the validity of Section 12 of Births and Deaths Registration Act.

"If the rationale of Section 12 is to ensure that only the names of the biological parents of a child find their way into the register, then it fails. There is no doubt in our mind that the wording of Section 12 must be altered, amended and qualified so that it can be inclusive of all children regardless of the marital status of their parents," LSK held.

The AG weighed his submission in favour of men, but LSK insisted that the law was discriminative to minors.

"The wordings of Section 12 in the Births and Deaths Registration Act denied the child born out of wedlock the entitlement to the name of his or her father," LSK, through its lawyer Rose Mbanya, argued.

Besides the child born out of wedlock, Mbanya argued that the provision discriminates children born in marriages rocked by differences.

"It also denies a child born from a union in which his or her parents are unable to agree and make a joint application the automatic entitlement to his or her father's name," she argued.

LSK says that every child, no matter the circumstances they are born in, is entitled to a name.

It was the view of LSK that other avenues can be used to address reluctant fathers' fears.

"The basic right of every child to be cared for by both parents, to a name and nationality and information, far outweighs this fear. We respectively submit that the wording of Section 12 must be re-looked so that its provisions embrace all children whether born within wedlock or outside of wedlock and accord each child the possibility of knowing his identity by knowing both of his or her parents' names," Justice Isaac Lenaola heard.

In the case, a woman is seeking to have a man's name entered in her child's birth certificate even without his consent.

In support, LSK argued that both biological parents should find their way into the register.

"In the case where a child is born of an unwed mother and she dies at child birth (mother), it is apparent from the wording of the section that a child so born would not meet the criteria to have his father's name on his birth certificate. There would be no possibility of a joint application by his parents and of course there would be no evidence of marriage. Such a child stands disadvantaged," LSK said.