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Women should not endure biased laws

By | July 25th 2009

By Njoki Ndung’u

Two separate but related incidents happened this week that left me reflecting on the theory and practice of our laws forbidding discrimination.

The last time I checked Section 82 of the Constitution, discrimination on the basis of tribe, local connection, political opinion, colour, creed or sex is outlawed. But then again, who cares?

First, late on Tuesday, I received a phone call from a friend who had just checked in into the labour ward at a hospital in Nairobi.

But her anticipated joy of motherhood was severely upset not by the natural pains preceding the process of giving birth, but by an outlandish rule cited by the hospital.

It stipulates that a single mother cannot put the name of the father of her child on the birth registration form!

The hospital purports to quote CAP 295 as its basis for its decision.

I disagree that this is the exact or even the intended interpretation of this particular law. True, there may be understandable circumstances in which a mother may not wish to register the father’s name if, for instance, the child is the product of coercion or uncertain paternity. But in situations where justifiable reasons are void, the father’s name can and should be registered as a necessity.

Registration forms

Documented knowledge of fatherhood is fundamental. Under the Children Act, a child has a right to live with and to be cared for by his parents. That presumes both father and mother. Pray, how does one do this without knowledge of paternity?

On the flip side, assuming a father wants to claim paternity, how can he do this without the agonising and protracted process of DNA tests when his name is not on the birth certificate?

This is a bad law because it discriminates not only against the mother and child, but also the father.

I am informed that in many other hospitals, childbirth registration forms do not have a space to fill in the father’s name. This is a major and unacceptable omission that is difficult to justify in a modern world.

For once I feel compelled to champion the fathers’ cause, since Maendeleo Ya Wanaume Organisation Chairman Ndiritu Njoka seems to be unaware or unconcerned about this particular discrimination.

Assuming fathers are not keen to be identified in their children’s birth records, we must treat the identity of paternity like the census question on tribe: potentially politically or socially explosive but absolutely necessary for demographical information.

Imagine how many children don’t know who their fathers are courtesy of this archaic law? How many will meet and marry or have children with their brothers and sisters unbeknown and possibly with all the undesirable consequences of inbreeding? Shouldn’t Government at least have this kind of information, if only to minimise this scary possibility?

As I celebrate the birth of my friend’s son, I hope somebody will find the motivation and the necessity to take one of these hospitals to a constitutional court to challenge and redress this injustice.

It is evident we need to use the court system to affirm some of our rights under the Constitution. Sadly, this is hardly something Kenyans do.

That is why I say kudos to Ms Lucy Nyambura and Ms Anne Wambui. The two residents of Mombasa have sued the Town Clerk for infringing on constitutional provisions that protect them from discrimination. For readers unfamiliar with their story, these two ladies were arrested and charged allegedly for loitering in a public place for immoral purposes.

Found with condoms

The case is ludicrous for the purported evidence as presented. The fact as established by the arresting officers is that the accused were found with condoms. They must therefore, it is claimed, have been planning to engage in immoral activities. The clerk justifies his officers’ actions by citing the by-law under which they were arrested.

It is ostensibly meant to protect society by curbing prostitution, which he says aids and abets the spread of HIV and is a medium of sexual exploitation by perverts and paedophiles.

As a passionate defender of the rights of women, I agree and support the two women. Carrying condoms cannot possibly be a crime.

And if indeed it were, I would like to see the statistics on similar arrests of men found with condoms. Surely, what is good for the goose is good for the gander! This case is a good example of a law that is discriminatory and unconstitutional. It clearly targets one gender. It is used to harass and arrest women.

It is also antiquated and archaic. During the 1997 Inter Parties Parliamentary Group deal, Parliament repealed all such oppressive laws.

The offence of loitering or being a vagabond, which was often used by chiefs and policemen to harass innocent wananchi, were abolished under the Penal Code. Many councils have however retained this law for illegal and expedient use. I advise the Town Clerk and other lawmakers of his ilk to watch an Action Aid sponsored documentary entitled, I deserve to be free.

Airing on KTN on July 30, this heartbreaking story about sexual abuse of the girl child is a must watch for all parents too. It also confirms most sex perverts and paedophiles are male.

Women carrying protective contraceptives do not fit this definition. Rather than slapping them with charges, they should be commended for having the wisdom to forearm themselves against potentially real assaults.

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