Mother wants child named after reluctant dad

The High Court will determine a case that might have a far-reaching effect on men who sire children out of wedlock and go silent about the same and at times neglecting them.

The case filed by a single mother before High Court Judge Isaac Lenaola will have a bearing on the naming of a child born out of matrimony and will in turn have an impact on succession process and even marriages if it sails through.

In the case filed against Attorney General Githu Muigai and the Registrar of Births and Deaths, the woman is seeking to have a man’s name entered in her child’s birth certificate even without his consent.

According to the mother of the four-year-old child, the father had indicated to her that his name should not feature in the child’s birth certificate, meaning he was disowning his own offspring. The mother’s name cannot be revealed because the case involves a minor.

She says in her sworn affidavit that her child lives in complete darkness as she cannot trace her father’s family tree.

“I remember at one time my daughter asking me who her dad was and imagined that since she had started school she could hear other children talk about their family and realised she is missing something. Indeed, the child’s family tree has a loosely hanging dead branch if they do not know their father,” she said.

Joint request

The mother of one, through her lawyer, is seeking to revert Section 12 of the Births and Death Registration Act which provides that a man 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 the law or custom.

“Section 12 of the act indirectly imposes on the single and unmarried mothers a heavier burden than fathers where parties are not married in that a single mother is expected to prove existence of a marriage which is impossible and or not achievable,” the lawyer argued in the court papers.

He further argued that the same section denies children born out of wedlock the right to name, which results to discrimination to children under this genre.

The lawyer said that if a child has a father’s name on the birth certificate, it guarantees the child parental responsibility and privileges that cannot be enjoyed by a child who does not know who the father is.

The case before the court has attracted the attention of the Kenya National Human Rights Commission and the Law Society of Kenya and will spark a long debate on who a child born out of wedlock belongs to, and whether men can agree to own up and have their love life follow them to their graves.

Another issue to be tested is the emerging trend where women are seeking to sire children and bring them up without the presence or a feel of a male figure.

“Children need to have as much information as possible about both parents so that they can enjoy a good sense of their own identity, personal, history, culture and a guarantee that personal responsibilities owed to them are equally fulfilled by both parents,” said the lawyer.

Name inscribed

The court heard that the provision that the man cannot have his name inscribed on his child’s certificate contravenes Article 27 of the Constitution providing for equality and freedom from discrimination.

Chigiti was of the view that having the name of both parents in the certificate can aid in tracing and treating a hereditary disease.

“There is no way the child can know his or her condition like high blood pressure, diabetes or possibilities of suffering from chronic illness which stems from the father’s condition if he does not know who the father is,” he noted.

He also argued that the current situation possess danger of having children marrying their siblings due to lack of information. He argued that these children have a likelihood of contravening the marriage law providing for a five-year jail term for celebrating prohibited marriage relationship.

On dignity, the lawyer created a picture that discrimination against the children of unwed in schools and social platforms whenever the question of the name and identity of the father arises.

The birth certificates of many children born out of wedlock bear the letters xxxxx in place of father of the child.

The lawyer says that Section 24 (3) of the Children’s Act promotes inequality because 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 remain so, the mother shall have parental responsibility.

These provisions, says the lawyer, give fathers a superior position to mothers.

The case will be mentioned next year on January 22.