Court's directive is in best interest of children

Children play in an open sewer in Homa bay Town. Article 53 of the Constitution provides that a child’s best interests are of paramount importance in any matter concerning them. PHOTO | TOM OTIENO | NATION MEDIA GROUP

What you need to know:

  • Previously, under Section 12 of the Registration of Births and Deaths Act, the mother of a child born out of wedlock could not put the man’s name on the document without his consent.

On May 26, the High Court declared that children born out of wedlock have a right to have the name of their father on their birth certificate.

Previously, under Section 12 of the Registration of Births and Deaths Act, the mother of a child born out of wedlock could not put the man’s name on the document without his consent.

The question was whether a father who does not want to associate with such a child should have his name forcibly registered on the certificate.

The Attorney-General argued that Section 12 of the Act was faultless; its purpose being protection of men from unscrupulous women who could potentially enter a person’s name in the register, and accuse them for personal reasons such as gaining status and money.

The petitioner argued that it was discriminatory and children born out of wedlock grow up without a full identity, saying a name not registered under a legal regime accepted by law has little or no value to a person; and that a sense of identity can only be created when the names of both parents are on the certificate.

Justice Mumbi Ngugi declared the section unconstitutional, in violation of Article 27 of the Constitution, which guarantees equality for all in the eyes of the law and freedom from discrimination.

She ruled that children born out of wedlock often face discrimination based on their parents’ marital status.

Any possibility of men being taken advantage of by women can be assuaged by the Penal Code in Section 320 as read with Section 312 of the same Act, and Section 22 of the Births and Deaths Registration Act - which criminalises giving a false name for a child’s father.

The courts have been steadily acknowledging and bolstering the rights of children born out of wedlock.

In another landmark ruling, Justice John Mwera said that marriage is not a factor in the rights of a child to inheritance and a child born out of wedlock is a legal heir.

Further, Article 53 of the Constitution provides that a child’s best interests are of paramount importance in any matter concerning them.

The chickens are coming home to roost for any and all who have secret spouses and children. The law is changing to better protect the rights of the child.

The writer is a lawyer