Men who father children out of wedlock have the final say on the names to be used in the child’s registration. That is the counsel of the Government legal adviser Prof Githu Muigai.
The Attorney General has told the court that men who sire children out of wedlock need to be consulted by women on whether their names can appear on the child’s birth certificate. The AG said there is no breach of the Constitution if the man’s name is not included in the 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,” Githu argued.
He quoted section 12 of Births and Deaths Registration Act in which the law requires that where a mother of a child does not declare the particulars of child’s father at birth because they are not married and they would like the father’s name to appear in birth certificate, the registrar ought to invoke this section and have the father give the green light.
The case before High Court judge Isaac Lenoala 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 will have a bearing on the naming of a child born out of matrimony and will in turn have an impact on succession and even marriage if it sails through.
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The woman is seeking to have a man’s name entered in her child’s birth certificate even without his consent but the AG argued: “I verily believe that the section (12) is meant to protect unscrupulous mothers from vindicating any man of their choice for personal reasons.”
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.
The mother said: “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.”
The mother of one, through her lawyer John Chigiti, 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.
He further argued that the same section denies children born out of wedlock the right to name, which results to discrimination.
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 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 a male figure. The birth certificates of many children born out of wedlock bear the letters xxxxx in place of father of the child.
The lawyer says 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. On the other hand, the AG wants the case dismissed.