The Children (Amendment) Bill, 2020 sponsored by Homa Bay Town MP George Kaluma has been sensationalised for understandably pushing for 50-50 mandatory upkeep between fathers and mothers.
Some have even hailed the law as constituting “a win for men”. The Bill only reinforces a principle that our courts have settled since the promulgation of the Constitution of Kenya, 2010.
The Constitution provides under Article 53 that every child has a right 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. Each parent has a duty to provide the child with the necessaries of life.
Sections 24(3) and 25 of the Children Act that are sought to be amended and repealed under the Bill were declared unconstitutional in 2013 by Justice Mumbi Ngugi. The amendment is therefore long overdue, considering that the Attorney General participated in that suit and had conceded that the section is unconstitutional.
The impugned Section 24(3) places the primary parental responsibility for the child on mothers in instances where they are unmarried, and provides that the father can only take parental responsibility for the child through a court order or through an agreement with the mother.
This is clearly a contravention of Article 53 of the Constitution. The court declared it unconstitutional and upheld the constitutional provision of Article 53 in all appropriate cases.
In every matter affecting or concerning a child, courts have always proceeded on the principle that the child’s best interests is paramount. The principle of “the best interest of the child” is founded on the Constitution as well as in the provisions of the Convention on the Rights of the Child.
The convention provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
Both father and mother must take responsibility over their child by taking care of their needs such as shelter, food, health, clothing, education and general welfare and all institutions that handle children matters are obliged to prioritise and to protect these interests all the time.
On the question of sharing of parental responsibility, courts have upheld the principle of 50-50 contribution in numerous decided cases. Most importantly, courts have been emphatic that although parental responsibility is to be shared, it can never be equal.
In many cases, courts have taken into account the financial capability of each parent before apportioning parental responsibility. Courts have been emphatic that equal responsibility does not mean equal and similar contribution as the income of each parent, and other non-monetary contribution must be borne in mind.
In some instances, courts have taken the view that since the mother is often the resident parent, she has a nurturing role to the children and where she has no income, the father is still compelled to provide maintenance and upkeep for the children.
In short, judges and magistrates have been alive to the fact that equal parental responsibility does not mean equal and similar financial contribution.
In cases where the mother of the child is found to have a stronger financial muscle, courts have not hesitated to apportion parties responsibilities that are proportionate. In fact, there are increasing cases of men suing women for child upkeep.
Child maintenance is such an important issue that should not be trivialised and subdued under the usual misogynistic and feministic wars. I conclude that there is nothing such as “win for men” under the Children (Amendment) Bill, 2020.
That “win” was already secured on August 27, 2010, when the Constitution was promulgated and from the courts’ interpretation and application of the law, it is the children who actually won.
