The High Court has declared unconstitutional sections of law that gave men the leeway to either accept or reject responsibility for children born out of wedlock.
In what now makes it harder for absentee fathers to reject or fail to maintain children they sire, the court decreed that parental responsibility is mandatory and cannot be left to the woman alone.
In a ruling that touches on the Children Act and the Succession Act, Justice Jesse Njagi also ruled that a man cannot escape parental responsibility by virtue of unemployment and that in case his partner dies, he must take full responsibility of the child he sired.
The judgement also changed child adoption process. Previously, the law allowed women to give away children born out of wedlock for adoption without consulting the father.
In the event that both parents are minors, the law only provided that the girl should consult her parents or guardian, without involving the boy’s family.
But Justice Njagi has now ruled that in the event the child’s father is known, then his point of view and consent ought to be considered before giving up the child for adoption; and that if minors are involved, the boy’s parents have an equal say.
“Parental responsibility is automatic and self-activating on parents upon the birth of a child and fathers cannot have discretion of either rejecting or accepting that responsibility. The automation of parental responsibility upon the birth of a child, and the responsibility is not left to the discretion of either the father or mother,” ruled Njagi.
He continued: “The plain meaning of Article 53 is that fathers and mothers have equal responsibility to a child they bear, and this responsibility is not left to the volition of the man or woman. Bottom line is that both of them must take responsibility.”
The judge first invalidated Section 2 (b) of the Children Act. This section gives men freedom of choosing to relate with the child born out of wedlock or not.
It reads that if a man does not acknowledge paternity of a child or has not been contributing to the maintenance of the child, that child cannot be considered as a relative to him.
The same section grants children born within marriage an automatic right to be a relative to their fathers.
“This is discriminatory on the children born outside wedlock on the ground of birth. This violated the right of equal treatment before the law to children born outside wedlock. It is in the best interest of a child for the child to be recognised as a relative of his father’s relatives whether the parents are married or not,” ruled Njagi.
The Children Act provides for transfer of parental responsibility upon the death of either the mother or the father.
According to the section, a man can only take up responsibility of the child born out of wedlock after the death of the mother if he had acquired parental responsibility.
Njagi begged to differ: “This is against the principle of equal responsibility of parents, which right cannot be qualified for reason that the father has or not acquired parental responsibility.”
The other issue at the heart of the case was child maintenance under Section 94(1) of the Children Act that provides that courts have to consider whether a man has assumed responsibility, how much he provides and for how long.
Njagi lifted this caveat, ruling that a child is conceived by two people hence one of them cannot run away from it.
“This implies that parents of children born out of wedlock have to assume parental responsibility before they can be ordered to pay maintenance towards their children. As stated above, a parent cannot opt out of parental responsibility,” he ruled.
The judge also declared Section 102(1) and Section 158 4(b) of the Children Act to be unconstitutional. The two sections direct on who is to take up responsibility of the child upon the death of the mother and consultations on adoption.
He also invalidated Section 3(2) of the Succession Act, which categorised children who would benefit from the estate of their fathers.
Section 3(2) gave children born out of wedlock automatic claim to the mother’s estate but only allowed those either expressly recognised by the father or whose fathers participated in their upbringing to claim his estate upon death.
The ruling marks another major shift in definition of parental responsibility in Kenya.
Courts first took away absentee fathers’ final say on whether their names should be inscribed on birth certificates of children sired out of wedlock.
On May 26, 2016, Justice Mumbi Ngugi declared that Section 12 of Births and Registration Act is unconstitutional.
The judge noted that the law was against women who had to prove paternity from reluctant men.
In some instances, courts had to intervene to force men to undergo DNA tests to ascertain if such children were sired by them.
In the case, former Attorney General Githu Muigai defended men, saying the contested section was meant to protect them from extortion.
Prof Githu had argued that there could be no other way of filling the birth certificate in case there was no proof of marriage.
He told the court that men who sire children out of wedlock needed to be consulted by women on whether their names could appear on the child’s birth certificate.
“Where the notification register is surrendered to the registrar of births and deaths when the name of the child’s father is not included, the registrar has no other way of ascertaining authenticity of a declaration being made thereafter except by consent of the alleged father,” argued Githu.
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