Court deals deadbeat fathers big blow
By Kamau Muthoni
| May 27th 2016
This could be the ultimate victory for single mothers and their children. Men will no longer have a say on whether their names should be included in the birth certificates of children they sired out of wedlock.
High Court judge Mumbi Ngugi ruled yesterday that section 12 of Births and Deaths law, which gave the man the final say on whether his name should appear on a birth certificate, is against the Constitution and the right of a child to have a name.
The judge noted that all children should be equal under the law and therefore those born out of wedlock should have their father’s name inserted in the birth certificate as a right.
“All children have a right and liberty to have their father’s name in the birth certificate. Section 12 of the births and registration Act is unconstitutional,” the judge declared.
The judge noted that the law was against the woman as she was the one to prove paternity, and, in some instances, the issue ended up in courts in a bid to force men give their DNA to ascertain if they sired the children.
The ruling was yesterday welcomed and opposed by the public in equal measure. Those who supported the decision argued that women should not beg men to have their names on a child’s birth certificate.
The judgement now changes the tide on maintenance and inheritance cases, as a birth certificate will be proof of whether a child was born from “illicit love”.
In the case, the mother of the four-year-old child narrated that the father of her child had indicated that his name should not feature in the child’s birth certificate, meaning he was disowning his own offspring. She said 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.
The mother of one, through her lawyer John Chigiti, said the law was irrational as it treated her child differently, compared to those born in marriages.
“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.
He further argued that the same section denies children born out of wedlock the right to a name, which results their discrimination.
The lawyer said if a child has a father’s name on the birth certificate, it guarantees the child parental responsibility and privileges.
“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.
Chigiti was of the view that having the name of both parents in the certificate can aid in tracing and treating a hereditary disease.
In the ruling, Ms Ngugi noted the country cannot hide from the fact that children are being sired away from marriages and the blame should not be shifted to the woman alone when it comes to registering the child’s name.
In the case filed in 2014, Attorney General Githu Muigai defended men, saying the contested section was meant to protect them from shifty women and to keep birth records in the right manner.
He told the court men who sire children out of wedlock need to be consulted on whether their names can appear on the child’s birth certificate.
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