In Summary
  • The Office of the Registrar of Deaths and Births has its hands tied because it can only work within a legislative framework.
  • The law intended to avoid scenarios where malicious mothers seek to have men statutorily recognised as fathers to children who may not be their offspring.

Children born out of wedlock may yet still have to contend with not having the names of their biological fathers included in their birth certificates because the laws have not been amended to reflect the aspirations of the Constitution and pronouncements already made by the courts.

And with each passing day, it is such children and their mothers who come to the painful appreciation of the phrase “justice delayed is justice denied”.

The corridors of justice, and in particular the Family Division, have hosted several women accompanied by their lawyers demanding that the names of the fathers of their children included in the offspring's birth certificates.

In February, High Court judge Jesse Njagi said in his judgment that “the Attorney General should amend the impugned sections of the Births and Deaths Registration Act, the Children Act, and the Law of Succession Act to align them with the Constitution of Kenya 2010.”

COMPLIANCE

This was to be effected by May and lawyers say that the order cannot be enforced because the Attorney General is no longer a member of Parliament.

“Before promulgation of the 2010 Constitution, the AG was an ex-officio member of Parliament and could present documents and advise lawmakers on the constitutionality of certain bills or acts. Currently, he has no direct contact with MPs,” explained a state counsel who sought anonymity.

Government bills are presented through the leader of majority and as a result of the principle of separation of powers, the courts cannot direct Parliament on what to do or prioritise. The AG can only bring to Parliament’s attention the court orders.

But Family lawyer John Chigiti feels that telling such mothers to wait for Parliament to amend the law will be unrealistic since that is not a priority to them.

“The AG has powers to enforce compliance with court judgments, just like the Chief Justice has powers to make practice directions that will propel access to justice,” he says.

“The AG doesn’t necessarily have to wait until the whole law is amended even though the ultimate solution is for Parliament to delete such sections from the statute through a miscellaneous amendment bill,” Mr Chigiti said.

ANTI-MALICE

The Office of the Registrar of Deaths and Births has its hands tied because it can only work within a legislative framework.

“The best approach for me now is through lobbying, frequent courtesy call to the AG, awareness creation, and that will open up a conversation,” says Mr Chigiti.

In 2016, the High Court invalidated provisions of Section 12 of the Births and Deaths Registration Act and directed the Registrar of Deaths and Births to enter into the births register the names of fathers of children born outside wedlock.

Early this year, the High Court similarly found that some of the laws were enacted before the Constitution of Kenya 2010, and should be updated.

Sections of the law have made it difficult for a father’s name to be included unless he consents, but such an option is not available to unmarried mothers.

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