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. Despite this, the principle is not always adhered to in Kenya and discrimination does exist in the country. One group that is being discriminated against 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 actually provided for in Kenya’s national laws.

According to the Children’s Act, the issue of parental responsibility, i.e. which of the parents has responsibility for 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’s 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’s Act is discriminatory in itself and also that it is inconsistent with the principle of non-discrimination enshrined in the same law as well as in the Constitution. Moreover it is 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 on 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 any 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’s 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 in 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.

* Erica Neiglick is a lawyer who works for The CRADLE. This article was submitted to Pambazuka News. Please send comments to [email protected]