Judges split on question of privacy of the ‘father’

Scientists analyzing DNA result [Courtesy]

Whether or not a man can be forced to undergo a DNA test has been a contentious issue.

PKM’s case is not isolated. Many other cases have been lodged at the High Court challenging orders of the lower courts.

Another man, CMS, had filed a case against a minor, IAK, and his mother, CAO, arguing that subjecting him to a DNA test was unnecessary and an intrusion of his privacy.

In his case before Justice Mumbi Ngugi (now a Court of Appeal judge), CMS said he had informed the Children’s Court that he was not ready for a DNA test, which he dismissed as “violating his conscience and irrelevant.”

It was this case that split judges’ stand on DNA tests. CMS had argued that he was not the father of the minor and even if he was, he had no parental responsibility.

CMS swore that his relationship with CAO ended in 2000 and the child was born in 2005.

But in her reply, CAO argued that the test was only to determine whether the man was the father of IAK or not.

Justice Mumbi agreed with CAO and ordered CMS to undergo the test.

“The petitioner has not demonstrated how being required to undergo a DNA test violates his freedom of conscience as guaranteed by the Constitution. All he asserts is that he is being asked to undergo the test against his will,” said Justice Mumbi.

She went on: “The question that must be asked is whether his unwillingness to undergo the DNA test is sufficient to override the interests of the child who may thereby be denied the constitutional right to parental care.”

However, Justice David Majanja had a different finding on compelling a suspected father to undergo a DNA test.

The judge, in a case filed by a woman codenamed SWM against a former mayor codenamed GMK, found that it would be an intrusion of privacy to have the man undergo a DNA test.

“Ordering the respondent to provide DNA for whatever reason is an intrusion of his right to bodily security and integrity, and also the right to privacy, which rights are protected under the Bill of Rights,” ruled Justice Majanja.

He went on: “The petitioner bears the burden of demonstrating to the court the right she seeks to assert or vindicate and which the court would consider as overriding the respondent’s rights.”

In that case, SWM believed that GMK was the father to her son. She told the court that she had in fact changed his name to that of the man.

In his response, GMK argued that the petition was only geared towards embarrassing him. He said SWM’s motive was to secure the court’s assistance so that upon his death, she could claim rights of inheritance over his property.

He argued that IAK was born on November 4, 1978, which was almost two years after SWM had been married to her husband.