The High Court in its ruling dated May 26th 2016 stated that women may now register the names of the fathers of children, born outside marriage without their consent on the birth certificate. Lady Justice Mumbi Ngugi ruled that all birth records may include the father’s name. Further, the court declared Section 12 of the Births and Deaths Registration Act unconstitutional.
Section 12 of the Births and Deaths Registration Act Unconstitutional
Section 12 of the Births and Deaths Registration Act states that no person shall be entered in the register of births as the father of a child “except either at the joint request of the father and mother” or upon proof to the Registrar that the father and mother of the child were married to each other in accordance with the law.
When the Act was enacted there was no DNA test or conclusive method of determining the validity of any unmarried woman’s claim. Further, women generally at the time did not get children out of marriage and their claims would therefore be unsubstantiated. Where a father expressly prohibited the mother from including his name in the Birth Certificate, he was backed by the law. The effect of such a law is the large number of single mothers in our society with little to no financial backing from the fathers of these children. Therefore, an undue burden is placed on the mothers of these children whilst the father is left to go without any parental responsibility.
Whereby there was no father acknowledged, there was the practice of placing the “XXXX” marks on the birth certificates of children born outside marriage. The placing of such marks obliterates the genesis and background of a child and gives incorrect information. Consequently this obliterates a child’s history and background information, inadvertently flying in the face of constitutional provisions on the right to information and health.
This section also presupposes that each child will have both his mother and father alive and available to make a joint application for such child’s birth certificate. In the case where the mother dies at child birth, such a child would not be able to meet the criteria to have his father’s name on the birth certificate.
Furthermore, the effect of section 12 is that if a father of a child born outside marriage is not willing to have his name entered in the register as the biological father, then his name will never be entered in the register. This is because; since the mother and father are not married to each other, there will never be any proof of marriage between them as would satisfy the Registrar.
The section places an arbitrary and unfair distinction between children born in wedlock and those born outside marriage. It also places an unjustified and unwanted distinction between married and unmarried women. These categorizations further perpetuate discrimination that fuels an already patriarchal system. Promises of equality and non-discrimination to children are entrenched in the Constitution. It is not too much to demand that we begin to affect these promises with respect to children born outside marriage.
The spirit of the Ruling
The spirit of the judgement seems to be the desire to transform society, to recognize the inherent dignity and worth of all persons; to protect those who have hitherto been marginalized and to ensure that they enjoy the human rights guaranteed to all on the same basis. Further, that the best interests of the child, whatever its status of birth, must be the primary consideration in every matter concerning the child.
The Constitution and the Law of Succession Act both accord equal treatment to children born in/outside wedlock. The law of succession act provides that all children have the right of inheritance from their parents. The judgement merely enforces the existing position of the law on equality. Nothing new is being introduced; rather a law is being brought to conformity with our Constitution.
Where the father of a child born outside marriage refuses to contribute to the upbringing of his child, the mother is compelled to seek the Court’s assistance in the form of a maintenance order, which often requires establishing paternity through a DNA test as per the ruling delivered.
However, with legislation that provides for inclusion of the particulars of fathers in the birth certificates of all children, whether born within or outside marriage, the burden imposed on women is lessened, and it is possible for men to take up their responsibilities with respect to children sired outside marriage.
Does this ruling support fraud?
The Attorney General alleged the purpose of section 12 of the Birth and Registration Act was to protect putative men from the alleged machinations of unscrupulous women (based on an unapologetic but unacceptable patriarchal mindset that wishes to protect men from taking responsibility for their actions, to the detriment of their children.)
In the court’s view, balancing the two interests, that of the men and the rights of children, there was no contest seen. Such a stated purpose, the alleged protection of men from unscrupulous women, is premised on a negative, discriminatory stereotyping of women as dishonest people who will latch onto a man for child support with no basis.
Furthermore it is provided in law that any person who fails to give notice of a birth or death registration and any person who willfully gives any false information or particulars for the purpose of registration, shall be guilty of an offence and be liable to a fine not exceeding five hundred shillings or to imprisonment for a term not exceeding six months, or to both such fine and such imprisonment.
It appears that should the mother of a child born outside marriage name a person as the father of her child falsely, then she will face the law.
The process of DNA sampling may be used to confirm the putative father, and the issue of costs can be addressed when such circumstances arise. Where a mother of a child born outside marriage alleges that a certain man is the father and he denies paternity, if the DNA process proves that he is indeed the father, he should be condemned to pay the costs of the DNA. However, if the DNA turns out negative, the mother should pay the cost of the test. This is as per the guidance of the court in the just concluded ruling.
Needless to say, there needs to be provision for the time within which such applications are to be made, and for notice to the alleged fathers, as well as provision for DNA testing to be undertaken to establish paternity where it is denied.
It was also argued that if names are allowed to be inserted in the Register at any point, a platform of confusion which will allow unscrupulous persons to enter any person’s name in the Register at any point in their lives for personal reasons will have been opened. Further such a situation will also open a window for unending litigation, and it is not in the best interests of the child that the name is entered in the Register at any stage, is contested, and then is struck out.
However, the court, in its ruling added that what needs to be put in place are clear rules for applying for the name of the putative father to be inserted in the birth register and certificate, for notice to be given to the person concerned so that he can agree or object, and in the event of an objection, for DNA testing to be done.
Rape and Defilement
There are unfortunate instances when children are begotten as a result of rape and sexual violence inflicted upon a woman. Naturally, such women may not particularly be inclined to include the names of the father of the child onto the children’s’ birth certificates.
Unfortunately, the judgement does not explicitly state what should happen to women in sensitive situations such as rape and if the father cannot be identified in such scenarios. It is however implied that should the identity be known through DNA testing, the father should ultimately provide for the child and we assume also appear on the birth certificate. We assume the court will resort to means such as attachment of property of the accused in the event they are paupers.
It is true that many rape victims would hardly want the names of their rapists on their children’s’ birth certificates. It seems that the judgement implies that the placing of fathers’ names is mandatory. Therefore this is a great oversight of the learned judge if that is indeed the position.
The judgement does raise some difficult questions. Especially considering it seems to eliminate the right of choice by women to exclude the names of men they have begotten children with.
Samantha Oswago and Wangari Karige
LAED-Kituo Cha Sheria