The Federation of Women Lawyers-Kenya (Fida) and the Attorney General are locked in a legal battle over whether a man should automatically provide for his biological children and whether those children should bear his name.
A single mother from Kakamega (NSA) has triggered the fresh battle after she sought Fida's assistance in getting orders to make it automatic for men to cater for children they father.
In the petition, she is asking the court to order an automatic responsibility for men to provide for their children, as is the case for women.
NSA and Fida want the court to declare that the use of the term 'child born out of wedlock' is discriminatory.
The woman told the court she cohabited with the father of her children for 10 years and had two children with him. But his name was missing from their birth certificates.
Their contention raised by lawyer Onyango Owino is that the law should allow a woman who is living with a man to include his name on the birth certificates of children that they bear together, even though he does not marry her, and that he should assume instant responsibility.
“Children don't choose to be born out of wedlock or who their parents will be,” the court heard.
“An unmarried mother has no way of requiring the father to take on parental responsibility unless he volunteers to do so. She may merely apply to the court to order the father to make financial provisions, which is at the discretion of the children's court,” the lawyer argued.
At the centre of this case are six sections of the Children Act. The two argue these sections violate the rights of children born out of wedlock and their mothers. The sections are 2, 24, 26, 27, 94, 102 and 158.
Section 2 categorises a runaway father as "a relative" of the child.
Section 24 on the other hand deals with how parental responsibility is acquired.
Sub-section Six of the same section allows a person to bear responsibility for a child born out of wedlock alone.
Sub-section Eight on the other hand dictates that a person can surrender some or all responsibilities to the other partner.
Section 27 deals with parental responsibility obtained by consent. The parents agree on the terms of responsibility and go to court to have them (terms) adopted as orders.
On the other hand, Section 27 deals with who will take care of the child born out of wedlock in the event one of the parents dies.
It gives sole responsibility of the surviving partner, in the event they have assumed parental responsibility, to take care of the child or do the same with a guardian appointed by the mother or father’s relatives.
Section 94 is about financial provisions for a child.
It gives conditions under which a court can order a step-parent or a father of a child born out of wedlock to provide money.
It provides that a magistrate will have to consider the mother’s and father’s financial ability, the child financial needs, the circumstances of any other siblings, the customs or religion of both parties and the child among other things.
NSA and Fida argue that the Children Act creates an optional paternity scheme.
“We find ourselves in situations where fathers of children born out of wedlock opt out of paternity by avoiding a legal relationship with their children and remaining free from any duty to support them. The discrimination is endemic in our country,” they add.
The woman relied on another suit in which the High Court made it mandatory to register a man’s name on the birth certificate of a child born out of wedlock.
In that case involving LNW against Attorney General Githu Muigai (below) and the Registrar of Births, it was settled that a child does not belong to a woman alone.
The Standard has learnt that although the court gave timelines in which the AG should push for changes of the affected sections, nothing has been done yet.
In the Kakamega case, the AG argues that Section 12 is meant to cure mischief where malicious women seek financial gain from men through the children, even those who have no blood relations.
“The mischief intended to be prevented by Section 12 is to avoid a scenario where malicious mothers, for financial gains or moral reasons, seek to have their children have statutory recognition from fathers even though they may not be the offspring,” the AG argued.