Kenya: Discrimination Against Children Born out of Wedlock

Summary: An article from CRADLE - The Children's
Foundation, Kenya, which shares their work
on fighting for equal rights for children born
out of wedlock.

The principle of non-discrimination is well established all over the world. It
is to be found in most international conventions as well as in many
countries municipal laws. Kenya is no exception and the principle is found
in Kenya’s constitution as well as in the Children Act. Kenya furthermore,
has ratified several of the international conventions containing the
principle; the CRC, ACRWC, ACHPR, ICCPR etc. Despite this, the principle is
not always adhered to in Kenya and discrimination does exist in the
country. One group that is being discriminated is children born out of
wedlock. When it comes to the issue of parental responsibility, these
children get less support than children born by married parents. What is
important to note in this regard is that this distinction between children
born out of wedlock and children born by married parents, is actual
provided for in Kenya’s national laws.

According to the Children Act, the issue of parental responsibility, i.e. which
of the parents has responsibility of the child, is determined by whether or
not the parents were married at the time of the child’s birth. In cases
where the parents were married, both the mother and the father shall
have parental responsibility. Neither the father nor the mother shall have a
superior right or claim against the other in the exercise of this
responsibility. However, in cases where the parents were not married at
the time of the child’s birth and have subsequently not married, the issue
of responsibility towards the child is different. In these cases, the mother is
the one with full parental responsibility whereas the father bears no
responsibility at all. The father can acquire responsibility, however this is
optional and more importantly, it is optional to the father, it is nothing
neither the mother nor the child is able to enforce on the father.

The CRADLE is currently involved in a case challenging these provisions of
the Children Act. A child, R, who was born out of wedlock, has through The
CRADLE sued the Attorney General for discriminatory laws. It is claimed
that the provision within the Children Act is discriminatory in itself and also
that it is inconsistent with the principle on non-discrimination enshrined in
the same law as well as in the Constitution. Moreover is it claimed that it is
inconsistent with international law. The background of the case is that R’s
mother (J) and father(S) were a couple and cohabited in the outskirts of
Nairobi. J had a thriving retail business, buying and selling clothes while S
worked as a mechanic. J conceived and fell ill in March 2000 due to the
pregnancy. Since she was unable to continue with her business, S advised
her to sell it. Eventually S sold J’s stock of clothes to a friend of his but he
did not give J anything of the profit even though the stock was hers.

In September 2000, J gave birth to R. Initially, S was involved in the child’s
upbringing. He named the child R after his mother and one week after R’s
birth, he shaved off R’s hair according to the customary law of his tribe.
However, after having stayed together as a family for about five months,
until January 2001, S one day left for work and did not return home. After
five agonizing days of waiting for S, J went to his places of work to look for
him. When she got there, she was informed that S had proceeded on leave
for two weeks and that he would thereafter proceed on transfer to
Mombasa. J still kept visiting S’s workplace on several occasions in order to
get financial assistance from him. J could do nothing else as she needed
money for R’s basic needs. However, J did not succeed in her efforts of
meeting S as she was always told that he was absent. In April, J finally met
S and got the opportunity to talk to him. However, at that point S told J
that he had no intention of coming back home. J pleaded if he could at
least help with R’s basic needs such as food and clothing but S declined.
He even said that there is no law in Kenya which imposes on him any
responsibility over the child.

J was forced to move from their matrimonial home and had to live with
different friends and relatives. She relied on menial jobs like washing
clothes for people but the money was not enough to meet the basic needs
for neither herself nor the child. On several occasions they went for days
without food. R developed health problems for which J could not afford to
pay hospital treatment nor medication. On the 14th of August 2001, J
sought help from The CRADLE. She came together with R and it was
obvious to The CRADLE that R, who by that time was about one year old,
was in a very poor condition. She suffered from acute malnutrition,
unattended curable infections and moreover, she was naked.

While going through the story of J and going through the legal issues in
the case, it became apparent to The CRADLE that there is a flaw in the
Kenyan laws as regards parental responsibility towards a minor born out
of wedlock and that this has never been challenged. Subsequently The
CRADLE took on the matter. The case is currently pending in the High Court
of Kenya with the hearing date set to February 2005.

The case of R is particularly important in the sense that a successful verdict
would set a crucial precedence as regards parental responsibility towards
a minor born out of wedlock. Subsequently it would have far reaching
consequences also for other men who have children born out of wedlock. It
is therefore the hope and expectation of The CRADLE, that the High Court
declares the provision on parental responsibility within the Children Act null
and void. The High Court should do so not only in order to let the
Constitution prevail but also in order to fully align Kenya’s national law and
practice to the requirements of international law. As mentioned initially, the
non-discrimination principle is well established internationally and
moreover do both the Convention on the Rights of the Child and the
African Charter on the Rights and Welfare of the Child(ACRWC) both of
which Kenya is a state party to and provide parental responsibility for both
parents, married or not.