Earlier on before the promulgation of the Kenyan Constitution 2010, no right on support and maintenance of a child born out of wedlock accrued on the father where there was no legal relationship between the mother and the father. The only remedy that the mother had was in the customary law which provides for pregnancy compensation but the compensation is usually paid directly to the mother parents and does not necessarily benefits the child. The compensation is also determined by the elders who are gender biased and tend to favour the father of the child.
LEGAL POSTION BEFORE THE CONSTITUTION OF KENYA 2010
Previously in our laws, the mother was deemed to have parental responsibility over the child at first instance. Particularly section 24 (3) of the Children Act, 2001 provides that where the child’s father and mother were not married to each other at the time of the child’s birth and have not subsequently married each other, the mother shall have parental responsibility at the first instance. Under Section 25, the father only acquires parental responsibility for the child if he applies to the court for it, acquire it through an agreement with the mother, has accepted paternity or has maintained the child or lived with the child for 12 months. This shows that the father does not automatically acquire the responsibility towards the child. In many cases, such children are not maintained by their fathers because they fail to acknowledge them and in rare cases, fathers do sign the parental responsibility agreement.
This is so discriminative as compared to children who their parents are married and is contrary to the best interest principle towards any child. Under the Births and Deaths Registration Act, a child’s mother cannot enter the name of the father of the child in the birth certificate without the father’s consent. This has been the inequality for the children born out of wedlock.
LEGAL POSITION AFTER THE PROMULGATION OF THE CONSTITUTION OF KENYA 2010
The position of joint responsibility of both parents whether married to each other or not, is guided by Article 53 (e) of the Constitution which provide that every child has a right to parental care and protection which includes equal responsibility of the mother and father to provide for the child, whether married to each other or not.
This provision was upheld in a landmark case of Zak & Another vs. The Attorney General & Another (2013) KLR. In this case, the petitioner challenged the Constitutionalism of Section 24(3) of the Children Act and Section 25. She argued that these sections infringed Article 27(1) of the Constitution which states that every person is equal before the law and has a right to equal protection and equal benefit of the law. In line with that argument, Justice Mumbi Ngugi stated that it was unconstitutional for the Children Act placing the responsibility of the children born outside marriage only on the mother. In this regard, the provisions of section 90(a) and (e) of the Children Act were unconstitutional considered alongside the provisions of Section 24(3) which places the responsibility of the child on the mother at the first instance where the mother and the father are not married.
The judge then proceeded to find that in line with the provisions of Section 7 of Schedule 6 of the Constitution, the Children Act must be read as imposing parental responsibility on both of their biological parents, whereby they were married to each other or not at the time of the child’s birth. The court further found that the above mentioned provisions of the Children’s Act to be unconstitutional hence null and void.
This has been the best decision made in light to the children born out of wedlock. Article 2(4) of the Constitution states that; any law including customary law that is inconsistent with the Constitution is void to the extent of inconsistency and thus, such provisions hindering the best interest principle on any child to be achieved should be struck out.