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November 19, 2018

Children born out of wedlock have a right to their father's name

The constitution, in Article 53(1)(a), guarantees every child the right to a name and nationality from birth.

The entry of the father's name in the birth certificate of the child born within the marriage is almost automatic. However, things are not the same when it comes to children born out of wedlock. The law has set up a barrier that the child has to climb over before they get their father's names entered in the birth certificate.

Under Section 12 of Births and Deaths Registration Act, no person shall be entered in the register as the father of any child except either at the joint request of the father and mother or upon the production to the registrar of such evidence as he may require that the father and mother were married according to law or, in accordance with some recognised custom.

The foregoing provision indirectly shelters the man who gets children out of wedlock. This provision in effect ends up punishing and disadvantaging not only the child but also the mother of the child born out of wedlock.

Under Article 27(4), the state shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

Section 5 of The Children's Act says no child shall be subjected to discrimination on the ground of origin, sex, religion, creed, custom, language, opinion, conscience, colour, birth, social, political, economic or other status, race, disability, tribe, residence or local connection.

Obviously the child's surname flows from the parents' family names. The fact that they are born out of wedlock should not form the basis for discrimination at all.

A statute that countenances and allows the none disclosure of the father simply because the parents are not married has to be interrogated.

There is a need to protect these children under Article 27 of the constitution and Section 5 of the the Children''s Act so as to bring them to par with the children born within the marriage.

Under Article 43 (1)(a) of the constitution, every person has the right to the highest attainable standard of health, which includes the right to healthcare services, including reproductive healthcare.

Whenever we go to hospital, the doctor will always ask for ones medical history. In a situation where the child does not know the father, then it becomes difficult for the doctor to advice the patient on the right type of medication to prescribe. How can a child born out of wedlock enjoy the highest attainable standard of health if they have no idea who their father is or what their medical condition is?

The Law of Succession Act sets out who dependants are.They are entitled to inheritance rights. A child who does not know their father risks being disinherited. The entry of a father's name in the birth certificate of a child born out of wedlock creates the linkage that facilitate the enjoyment of the inheritance rights. Article 27 (1) stipulates that every person is equal before the law and has the right to equal protection and equal benefit of the law. It's all about identity.

The entry of the names of the father in the birth certificate of a child born out of wedlock will only go a long way in promoting the best interest of the child under Section 4 of the Children's Act as read with Article 53.

The rights of the child override the rights of a father who gets a child out of wedlock. Why should his name remain anonymous?

Section 7 of Schedule 6 of the Constitution opens the doors for the modification, adaptation and reassessment of Section 12 of the Births and Deaths Registration Act to bring it to speed with the constitutional provision that all children are equal before the law irrespective of their status.

Under the Marriage Act marriages to close relatives is prohibited for obvious reasons. These are voidable marriages.

A child or children who do not have the names of their fathers are most likely the children who have never met their fathers. When they meet in college and or date as teenagers, there is a huge risk that they will end up getting married. This can be stopped if we looked at Section 12 of the Births and Deaths Registration Act.

Let us rethink and reengineer the offending provision. The children born out of wedlock have legitimate expectations which the state is under an obligation to fulfil. It is a social right which does not call for resources and or a progressive realisation approach.

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