Susan Kimani is an advocate of the High Court of Kenya and an LL.M candidate at the University of Cape Town. She is attached to the Department of Commercial Law specializing in International Trade Law.
L.N.W v Attorney General, Registrar of Births and Deaths and 2 Others (Petition No 484 of 2014)
“What’s in a name?” William Shakespeare asks in Romeo and Juliet, “that which we call a rose, by any other name would smell as sweet.” Years later, L. M. Montgomery expresses, “I read in a book once that a rose by any other name would smell as sweet, but I’ve never been able to believe it. I don’t believe a rose would be as nice if it was called a thistle or skunk cabbage.” On 26 May 2016, Kenya law on the nomenclature of children born outside of marriage aligned itself with the latter sentiments.
A child’s name is at the centre of his or her identity, and who the society perceives him or her to be. This was one of the outcomes of a judgement delivered by the High Court of Kenya, which ruled that children born out of wedlock will now have their fathers name inserted in their birth certificate as of right.
The petitioner in this case challenged the constitutionality of section 12 of the Kenya Registration of Births and Deaths Act (the Act) which provides that:
‘No person shall be entered in the register as the father of any child except either at the point of the 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 recognized custom.’
The petitioner alleged that this provision was unconstitutional because it was discriminatory against children born outside marriage.
The petitioner was a mother of a four-year-old child who was conceived and born out of wedlock. The child’s birth certificate did not indicate the name of the father because when the child was born the father indicated that his name should not feature in the child’s birth certificate. The petitioner had to comply with section 12 of the Act.
In bringing her petition, the petitioner averred that this law was discriminatory against children born out of wedlock in providing that the only time the name of the father of a child born outside of marriage can be entered in the register of births is upon the request of the father and mother or upon proof of marriage. This is discriminatory, contrary to article 27(4) of the Constitution of Kenya 2010 (the Constitution), and is against the best interest of the child under article 53 of the Constitution.
The petitioner argued that children born out of wedlock are disadvantaged in several regards, such as in matters of health, marriage and inheritance, as a result of the restrictions established by the impugned section. A child may miss out on rights of inheritance and the right to property under article 40 (1) of the Constitution. Children with their father’s name on the birth certificate enjoy the right to inherit property from both parent as it is easier to prove parentage.
The petitioner further alleged a violation of the right to information regarding one’s father under article 35(1) (b) of the Constitution with respect to children born out of wedlock. The lack of information in turn violates article 43 of the Constitution on the right to highest attainable standard of health, since it is not possible to trace one’s father’s medical history. It also increases the chances of marrying one’s siblings, hence the threat of entering into prohibited marriage relationships.
The respondent on their part argued that section 12 was meant to prevent unscrupulous mothers from implicating any man of their choice for personal reasons. They argued that the mother has a chance to declare the father’s name in the birth notification register and if they do not do so at the time of birth, the respondent has no way of ascertaining the authenticity of the declaration made afterwards except by seeking the consent of the father. The respondent also added that entry of the father’s name into the register does not guarantee that a child will enjoy the rights alleged to be infringed by the petitioner. The respondent contended that section 12 of the Act comes into play where an application to include the name of the father is made long after the birth of the child.
- Issue for determination
The Court had to determine whether section 12 of the Act was unconstitutional and in violation of among others, article 27, 53(1) and (2) of the Constitution.
- Applicable laws
- National law
Article 27 of the Constitution provides that every person is equal before the law and has a right to equal protection and benefit of the law, while article 53 (1) assures of the right of a child to a name and nationality from birth. Article 53(2) provides that a child’s best interest is of paramount importance in every matter concerning the child.
The import of article 27 is that no legislation should afford different treatment to children on account of their birth. The rights guaranteed to children under article 53 of the Constitution therefore, together with other rights of the child must be accorded to all children, whether born within or outside of marriage.
Every child is entitled to a name and nationality. In a patriarchal society such as Kenya, this implies the fathers name. Due to the provisions of section 12 of the Act, unless the father consents, a child born outside marriage would never have, let alone know, its father or his name.
- International law
These rights guaranteed to a child are not peculiar to Kenya. They are advanced by various international instruments to which Kenya is party. These include article 7 of the 1989 Convention on the Right of the Child which recognizes the right of a child to a name and article 25(2) of the Universal Declaration of Human Rights which prohibits discrimination, stating that all children whether born in or out of wedlock should enjoy the same social protection.
In addition, article 24 of the International Covenant on Civil and Political Rights requires equality of children and immediate name registration upon birth.
- Practice in other jurisdictions
The court considered the practice in other jurisdictions. In South Africa, in Bhe and Others v Magistrate of Khayelitisha and Others, the Constitutional Court ruled that there should be no distinction between children born within, and outside marriage with regard to intestate succession.
In the US, such as in Gomez v Perez, the courts interrogate whether the law presents an insurmountable barrier for children born out of wedlock, and whether there is a substantial relationship between the policy and an important government policy.
In Bhe v Magistrate of Kyayelitsha and others, it was recognized that the law and social practice regarding extra-marital children was stigmatising, harmful and degrading. Children born outside of marriage were discriminated against; could not have a relationship with their fathers, and only inherited from their mothers. This was analogous to the situation in Kenya where children born outside marriage did not have a relationship with their unknown fathers, and could not expect parental care from them. The Court in Bhe stated that the prohibition of unfair discrimination in section 9(3) of the Constitution of the Republic of South Africa (South African Constitution) should be interpreted to include a prohibition of differentiating children in the basis of whether their biological parents were married at the time of conception or birth.
Article 27 of the Kenyan Constitution mirrors section 9 (3) of South African Constitution and therefore commands similar interpretation.
It is pertinent to consider the object, purpose and effect of the impugned section. Protection of the accuracy of the records kept by the registrar of births and deaths and protection of men from unscrupulous women who may implicate them falsely has to be weighed against the right being limited. Article 24 of the Constitution of Kenya, and various judicial precedents require the purposes of a limitation of right to be considered, as well as the relationship between the limitation and its purpose, and whether there are less restrictive means of achieving the purpose. This was the observation of a five-judge bench of the High Court of Kenya in Coalition for Reforms & Democracy & Others v Republic of Kenya & 10 Others. This also reflects the US position of assessing the relationship between the law and an important government policy as espoused in R v Big M Drug Mart Ltd.
While the Court observed the need to keep proper birth records, it also stated that the constitutional aspirations of preventing discrimination, promoting the rights and best interests of the child; promoting the national values of dignity, equity and social justice far outweigh this need, and the desire to protect men from unscrupulous women.
- Findings of the Court
The Court found section 12 of the Act unconstitutional and in violation of article 27, 28 and 53 of the Constitution.
The Court also took the liberty of commenting on the unfair burden that the section imposed on mothers of children born outside marriage, finding it discriminatory on the basis of sex. When a father refuses to contribute to the upbringing of the child, the mother has to seek a maintenance order from the court which often requires a DNA test to establish paternity. The High Court has previously observed in the case of Zak and Another v the Attorney General and Another that parental responsibility for children, whether born within or outside marriage, is the responsibility of both the father and the mother. Where the identity of the father is not known, or his particulars not included in the birth register or the child’s certificate, then a single mother has the burden of pursuing the father for support, having first to establish the question of his paternity, a process which has been marred with administrative difficulties in the past.
Unmarried women are also discriminated against, since they have the burden of obtaining consent of the father of their children in order for their names to be entered in the register of birth. There is no, valid reason in this case to treat these two differently as stated by Lord Hoffman in Matadeen and another v Pointu and Others.
Inasmuch as entry of the name of the father’s name may not guarantee the child care and support, it gives the child identity. For fathers to take parental responsibility, this must start with the law on the registration of the births of their children being corrected.
The attorney general was instructed to pursue amendments to the Act and formulate rules for application for father’s names to be inserted in the birth register and for DNA testing in case of an objection.
So, what’s in a name? With regards to a child born outside of marriage: everything. This is now the law in Kenya.
Constitution of Kenya, 2010
Constitution of South Africa, 1996
Registration of Births and Deaths Act (Cap 149) Laws of Kenya
Convention on the Right of the Child, 1989
International Covenant on Civil and Political Rights, 1966
Universal Declaration of Human Rights, 1948
Bhe and Others v Magistrate of Khayelitisha and Others (CCT 49/03)  ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC).
Coalition for Reforms & Democracy & Others v Republic of Kenya & 10 Others (Petition No 628 of 2014)
Gomez v Perez 409 U.S 535, 538 (1973)
Matadeen and another v Pointu and Others (1998) 3 WLR 18.
R v Big M Drug Mart Ltd (1985) 1 S.C.R 295.
Zak and Another v the Attorney General and Another  eKLR