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Kenya: Law on Registration of Out-of-Wedlock Children Ruled Unconstitutional

(May 27, 2016) On May 26, 2016, the Kenyan High Court found unconstitutional a provision in the Birth and Death Registration Act banning the inclusion in an out-of-wedlock child’s birth certificate of the name of the child’s putative father without his consent.  (Kids Born Out of Wedlock to Have Father’s Name in Birth Certificate – Court, CAPITAL NEWS (May 26, 2016).)  The provision in question states:

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 recognized custom.  (Birth and Death Registration Act of 1928, § 12, Cap. 149 (rev. ed., 2014).)

The Attorney-General, who represented the state in the matter, had argued that the provision was aimed at protecting men from “unscrupulous women.”  (Maureen Kakah, Court Rules for Inclusion of Father’s Name on Birth Records of Children Born Out of Wedlock, DAILY NATION (May 26, 2016).)

The Court disagreed.  It noted that every child has the right to have the name of his or her father added to the birth certificate, regardless of the marital status of the parents.  (Malauda, Breaking: Children Born Out of Wedlock to Have Father’s Name on Birth Certificate as a Right, KENYA LIVE (May 26, 2016).)  The Court held that the above-cited provision of the Birth and Death Registration Act, which disallows such a right, is a violation of the equality and freedom from discrimination clause of the Kenyan Constitution.  (Id.; Constitution of Kenya, 2010, § 27, World Intellectual Property Organization (WIPO) website.)

The Attorney-General has 45 days to make the necessary changes to implement the ruling.  (Malauda, supra.)