Children born out of wedlock are now asking the courts to compel men to subject themselves to DNA tests so as to prove that they are related to them.
Nobody can force you or subject you to a DNA test without your consent. You have a constitutional right to refuse to undergo a DNA test.
However, such a refusal is a clear violation of the concerned child’s right to know his father in cases of paternity disputes. The court can compel one to undergo a DNA test so as to uphold the best interest of the child. This will be done so as to connect the child with the father.
In Petition No. 526 of 2008, CMS vs IAK before judge Mumbi Ngugi, the petitioner sought orders to find the orders of the Children’s Court requiring him to undergo a DNA test an infringement of his right to conscience.
The judge observed that it should be held that in determining a matter such as this, the court must of necessity weigh the competing rights of the child and the petitioner who is alleged to be the biological father.
The right of the child to parental care takes precedence, in my view, particularly in light of the cardinal constitutional principle set out in Article 53(2) that in matters such as this, the paramount consideration is the best interests of the child.
The judge went ahead to ask, “Would it be an infringement of the petitioner’s constitutional right to freedom of conscience either under the new or the old constitution to require him to undergo a DNA test?" Her answer was, "I do not believe so."
The judge stated Article 78(1) of the old constitution and Article 32(1) of the new constitution protect the right of all persons, including the petitioner, to freedom of thought and religion, and of the freedom to change his religion and belief and to practice his religion.
However, she said the petitioner has not demonstrated how being required to undergo a DNA test violates his freedom of conscience as guaranteed by the constitution. The judge dismissed the father's argument and upheld the rights of the child.
However, on October 24, 2012 DS Majanja in SWM versus GMK, Petition No 235 of 2011, the High Court in Nairobi declined to grant an order compelling GMK to undergo a DNA test so as to ascertain whether he was the biological father of SWM.
SWM filed a petition in court seeking orders that a DNA test be carried out on GMK and herself so as to ascertain whether GMK was her biological father.
SWM’s case was that she believed GMK was her biological father as he had intimated this fact to her and influenced her to change her late son’s name from SM to GM.
She contended that she was born out of a union by GMK and her mother in 1978, whereupon GMK abandoned her mother. Thereafter, her mother got married to another man.
SWM submitted that she felt highly obligated to ascertain her heritage and therefore filed this petition under Article 33(1) (a) of the Constitution of Kenya, 2010 on the freedom to seek, receive or impart information or ideas, in this case information relating to her biological father and heritage.
The judge made a finding that “…Ordering the respondent to provide DNA for whatever reason is an intrusion of his right to bodily security and integrity and also the right to privacy which rights are protected under the Bill of Rights. The petitioner bears the burden of demonstrating to the court the right she seeks to assert or vindicate and which the court would consider as overriding the respondent’s rights.’’
The Judge was of the view that he did not see how compelling a person to undergo a DNA test fell within the scope of Article 33. The court went on to state that SWM had not demonstrated that her right to freedom of expression has been violated by GMK.