Thank you for the legal advice you give people. My question is this: If you have a baby with a person, can you use their name to acquire a birth certificate without using their ID in the event that they have not given it?
Let me start by first appreciating you for following us by reading our column. Secondly, I appreciate you for bringing to the fore the question of birth registration which, in the recent past, has been a subject of litigation.
I will answer your question on the assumption that it centres on an unmarried couple and a child born out of wedlock.
The question brings out both substantive and procedural or administrative legal issues. For starters, Article 53 of the Constitution of Kenya bestows equal parental responsibility.
This responsibility is not exercised on the whims of the man or the woman.
The bottom line is that parental responsibility is automatic and self-activating on both parents whether they are married or not; and includes the right of a child to a name.
Registration of a child infers recognition of parental responsibility. In terms of actual registration, the position today is that all births must be registered.
It is the duty for both parents to give notice of birth to the relevant Registrar of Births. The notice is required to be given in a prescribed form.
This means entering both the name of the father and the mother regardless of their marital status.
Section 12 of Registration of Births and Deaths Act provides for prior consent of the father before his name is entered in the register.
The Act predates the Constitution and the provisions of section 12 have been declared unconstitutional on two separate occasions by the High Court.
The cases obligated the Attorney General to bring appropriate amendments to the Act with a view to bringing it to conformity with the Constitution.
However, until that happens, both parents to step up the plate and take parental responsibility for their children, which must begin with registration of birth with the appropriate name.
In the event of refusal by either of the parent to have their name entered in the child’s birth certificate, civil proceedings can be brought against the adamant parent.
Therefore, to answer your question, the answer is a big YES.
Eric Mukoya is the Executive Director, Legal Resources Foundation Trust. Do you have a legal problem you would like addressed by a lawyer? Please email your queries to [email protected]