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Law alone won’t resolve naming of children born out of wedlock

By Kamau Muthoni | May 29th 2016

A sociology expert is calling for cautious celebrations on the ruling by Justice Mumbi Ngugi that children born out of wedlock should have the father’s name in their birth certificate. Prof Octavian Gakuru says new social trends where women want children minus the man and breaking away from patriarchal traditions where men were protected from responsibility in case of illicit love bring more intrigues on what is in a name.

The don admits that knowing one’s roots is equally important as one has a sense of belonging, but prospects of life are breaking apart the traditional feeling that the child belongs to a man more than a woman. He says all this depends on culture as in some communities; men go after their kids while in others the same are named after their mothers.

“If the name of the man who impregnates a woman or a girl appears on the birth certificate so be it but there should be ways of proving paternity without doubt,” Gakuru said.

The debate on the children born out wedlock started before independence. The colonial master had come up with a law dubbed Affiliation Act to ensure putative fathers took care of girls they impregnated away from marriage and the child.

But tables turned on May 9, 1969. An all male National Assembly repealed the Affiliation Act, protesting that girls were using the same to hunt for the heavy pocketed. The MPs noted in their deliberation that the Affiliation Act was encouraging single motherhood, terming it ‘a very dangerous situation’ into which Kenya was drifting into.

Then Attorney General Charles Njonjo opened the debate on the repealed Bill to a booming ovation and shouts of “pass it without debate.’’

Women were accused of having misused affiliation payments once they received them. The MPs argued that women used the cash not to provide for their children but instead buy wigs, miniskirts, and then popular skin lightener (Ambi) that allegedly helped them “attract  new boyfriends” to ensnare.

The responsibility to care for child born out of wedlock was then placed squarely on the mother, who had to provide for its life’s necessities and education.

Decades after, the country once again waded into the debate and this time under section 12 of the births. Judge Ngugi in her ruling noted that the section promoted discrimination against single mothers as they had to prove paternity in a bid for the child to get the birth certificate with the man’s name inscribed.

“Globally, the judgment puts the child as a priority with the right to a name, identity and dignity. The mothers and the fathers have safeguards in line with the safeguards as set out in the judgment,” lawyer John Chigiti said. Lady Justice Ngugi had ruled out that women are after men’s names in their out of wedlock children’s’ birth certificates just because of benefits.

She termed this a stereotype that framed women as dishonest people who latched onto men for child for support with no basis.”

Several cases have been filed over paternity recognition. Murang’a Senator Kembi Gitura, in 2013 was faced with a legal battle initiated by a lawyer seeking recognition as his biological son.

Roy Kiarie  filed a petition in the High Court in Nairobi seeking an order to compel Gitura to accept him as a son. Kiarie alleged he had been ridiculed and called a bastard due to Gitura’s refusal to acknowledge him.

He wanted the senator to allow him adopt his surname Kembi. “I am disturbed that my current and future offspring may associate with people of the same family to the extent of even marriage unknowingly,” Kairie alleged.

The lawyer wanted Gitura to undergo a DNA test to determine if the politician was his biological father. But Gitura in response argued that the case is a witch-hunt. He said the case lacked basis because Kiarie relied on rumours and is using litigation to smear his good name. He asked the court to dismiss the case.

Parental recognition

In a separate case,a woman claiming to be a daughter of former Assistant Minister John Keen sued seeking parental recognition. In a suit filed at the High Court in Nairobi in 2013, Ruby Karimi claimed Keen sired her out of wedlock and has denied her recognition as one of his children. Her mother, Janet Ekumbo, told the court she gave birth to Karimi after an intimate encounter with Keen when she was only 18 years old.

Karimi, born in 1981 wants the court to compel Keen to undergo a DNA test to ascertain if he is indeed her biological father.

“I have time and again received assurances from my mother that John Keen is my biological father and I believe it is within my constitutional right to know the identity of my biological father,” Karimi stated.

Justice Ngugi will give verdict on Keen’s case on July 14. In a rejoinder, after the death of former Defence Minister Njenga Karume in 2012, a man moved to court asking that his burial be put on hold to allow for a DNA test.

Edwin Thuo, 45 years, moved to the High Court claiming the former Kiambaa MP was his biological father but had refused to acknowledge him as a son.

His mother, Lucy Muthoni also joined him, saying the former minister is his biological father. In a sworn statement filed in court, she claimed Karume sired Thuo in 1966 when she worked as a secretary at his Kiambu General Transport Agency.

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