Children born out of wedlock will now have a full identity. The court gave them the right to carry their biological father’s name and scrapped from law books a statute denying them that.
High Court judge Mumbi Ngugi declared Section 12 of the Births and Deaths Registration Act, which discriminated against children of unwed mothers by denying them the right to carry their father’s identity, unconstitutional. That law prohibits a mother from entering the biological father’s name on a birth certificate without the man’s consent. Many men refuse, wary of legal and financial responsibility.
Justice Ngugi yesterday said the section violates article 27 of the constitution, as it only allows names of fathers to be included in the child’s birth certificate with their consent. She said: “There needs to be a change in the law as the children born out of wedlock have a right to have names of their fathers included in the birth certificates.” Ngugi gave the state 45 days to comply with her decision and make necessary legislation.
Children of unwed mothers will no longer have their birth certificates bearing XX in place of father’s name.Under the current law, a child born out of wedlock faces discrimination and “lives in the dark and with an incomplete name and or identity,” said a single mother identified as LNW, who lodged the case in court through lawyer John Chigiti.
The constitution provides that all children are entitled to a name and nationality from birth. It also entitles all children to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not. The Law Society of Kenya also came on board in the case and supported the single mother’s arguments. Besides the child born out of wedlock, LSK said the provision discriminates against children born in troubled marriages.