An official in the Ministry of Education was shocked that women in Western region did not go into marriage with children they had before they got married.
One of the extraordinary features of the Children Act, 2001 is that it recognises the rights of children born out of wedlock. The law puts these children on equal footing as far as their rights and other legitimate interests are concerned. These children have as much rights as those born within marriages recognised by the law.
The law identifies the mother as having parental responsibility at the first instance in the event that the biological father and the child’s mother were not married at the birth of the child.
The ensuing marriage of the mother doesn’t release her from the responsibilities she owes to the child. These responsibilities include providing for the education of the child. She cannot run away from the responsibilities she assumed by bearing and giving forth the child—with or without the assistance of the biological father.
There are cases, however, where the father acquires parental responsibility for the child. The Children Act has provided for circumstances under which such parental responsibility is acquired.
A father cannot, at whim, release himself from responsibility once he has assumed parental responsibility for the child(ren). He is responsible, in this context, for the education of the child until the child completes his/her education and training.
Questions of a child languishing at the grandparents' home because neither parent is available to provide resources necessary for school attendance should not, in ordinary circumstances, arise. The Children Act, with enabling regulations, provides protections for such a child—which protections should see the child having a seamless educational experience.
With or without the protection of the law, the Customary Law in all our indigenous communities protected children born out of wedlock. The Luhya community is patrilineal. A patrilineal society refers to a society that organises its family relationships in societies by lines of descent from a person's male ancestors.
In this context, children belong to fathers. The implication of this familial arrangement is that fathers assume the duty of care of children—right from infancy to adulthood.
By implication, Luhya Customary Law imposed child care responsibilities, particularly education, on the father. It is the clan of the father that actually educated the child, by dint being asked to provide custodial care to the child born out of wedlock—to bring up the child into the ways and habits of the father’s clan.
With or without the Children Act, 2001, the government or appropriate agencies of government, can invoke Customary Law, and in this instance Luhya Customary Law on Child care, to ask biological parents to meet the cost of the education of children born out of wedlock.
It doesn’t matter where the child is. That is a matter foreign to the right of the child to education. The child can be with the maternal grandparents, uncles or whoever. He or she needs protection from the law. His or her entitlements are sacrosanct.
Ancient societies never abandoned children—regardless of whether they were born within or out of wedlock. We have historical and mythological information which demonstrates that children were not abandoned.
There are those children whose birth threatened the powers that be. But both or one parent didn’t forsake the child.
Each civilisation and society have stories of abandoned children who nevertheless survived the neglect and perfidy of others and became great benefactors to that society or family.
All children belong to God, as the shocked official poignantly observed, vouching for the children some mothers abandon—by virtue of the cultural demands of their communities.
However, all these children have biological and surrogate parents who should take care of them during their age of vulnerability.
The children whose mothers got married—be they in a patrilineal or matrilineal society—have a right to education.
Modern law as well as Customary Law—doesn’t know or care about whether they were born out of wedlock or within a marriage designated by the statutes. They have a right to education. They ought to be enabled to access education.
Communications officer, Ministry of Education
