Differential Treatment of Children born out of Wedlock in Kenya, Namibia and South Africa: - Unfair Discrimination?

1. Differential Treatment of Children born out of Wedlock in Kenya, Namibia and South Africa: - Unfair Discrimination? By NkathaMurungi

2. Introduction • The differentiation of children based on the marital status of their parents predates current law – African customary law and English and Dutch common law • The CRC and the ACRWC are the primary points of reference on the rights of the child

3. Since the adoption of the two conventions, several African Countries have embarked on child law Reform • Kenya – Adopted the Children’s Act of 2000 • South Africa – Law review began in 1997, culminating in the Act of 2005 • Namibia – Still on course

4. CRC and ACRWC • Article 2 of CRC and 3 of ACRWC prohibit discrimination on, inter alia, birth or other status whether of the child or of their parent. • Both the CRC and ACRWC also advocate for sharing of parenting responsibilities (article 20 and 18(1) respectively)

5. +African customary law • African customary law DID make the distinction between children born in and out of wedlock. • The main distinction was made at the point of inheritance • Largely however the responsibility for the upbringing of children born out of wedlock vested on the mother and her family

6. Kenya • First of the 3 to adopt a comprehensive Act which gives effect to CRC and ACRWC • Part III thereof deals with parental responsibilities • Section 23 defines parental responsibility as

7. ‘all duties, rights, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property in a manner consistent with the evolving capacities of the child’ • The bearer has a duty to maintain the child and to provide food, clothing, shelter, medical care and education.

8. Responsibility is automatic for both if married or if they subsequently marry • If not married: Mother acquires responsibility at first instance • Unmarried father acquires PR only if he:

9. Applies to court for an order vesting responsibility • Enters an agreement with the mother according him parental responsibility • Cohabits with the mother after the birth of the child for a period(s) of at least 12 months • Acknowledges paternity, or • Maintains the child.

10. Issues • There is a difference in how the mother and the father of the child are treated • All 5 ways demand a positive step from the father to acquire PR • There is no room for an action by mother or child to enjoin the father to take up responsibility

11. Maintenance under the Act is pegged upon acquisition of parental responsibility • The unmarried father has the absolute choice on whether or not to take responsibility

12. Rose Moraa & Others v Attorney General • Was the first case to highlight the shortcomings of the provision • Court was to determine whether section 23(3) was discriminatory against children born out of wedlock • Grounds for discrimination applied in the case: social origin, birth or other status • Current constitution does not recognize these

13. grounds as a basis for discrimination • State argued and court agreed that the provision was well within the state’s margin of appreciation with respect to the domestication of international instruments • The appeal decision is pending but the precedent is a clear blow to protection of children’s rights in Kenya

14. South Africa • History of the rights of unmarried fathers is traceable to common law and the subsequent enactment of the Natural Fathers of Children Born out of Wedlock Act (Act 86 of 1997) • This Act was precipitated case law, particularly Fraser v Naude and Others

15. Though advancing the Rights of unwed fathers, it did not bring them to the same position as the married fathers or the mothers • Since July 2007, section 21 is what sets out the criteria by which an unmarried father may acquire responsibility • These are where:

16. He is living with the mother at birth in a permanent life partnership • He consents to be so identified • He successfully applies to court • He pays damages under customary law • If he contributes to the child’s upbringing and expenses towards maintenance for a reasonable period

17. Issues • The Bill presented to Parliament borrowed from the Kenyan model yet the final section omitted the 12 month specification • Does the omission add or subtract any value in the provision? Would it help the ambiguity created by the ‘reasonable period’?

18. Is length of time relevant to determining the responsibility of the father? • The critical difference: Section 21(2) of the SA Act provides that the absence of parental responsibility does not absolve the father of the duty to contribute to the maintenance of the child

19. The provision effectively severs maintenance from PR • The Kenyan Act does not – section 23(4)a of the Kenya Act instead provides that the absence of PR does not absolve one from other responsibilities arising from statute ‘including the duty to maintain the child’.

20. That provision is merely speculative • The SA approach means that the father whether or not willing to take up PR shoulders a duty to maintain. Thus the drive to attain full PR is to give him more impetus to pursue the entire package

21. Namibia • Parental rights for children born out of wedlock is governed by the Children’s Legal Status Act (2006) • The Child Care and Protection Bill is due for consideration by Parliament • Under the 2006 Act, still the law in application, both parents can become the custodian parent of the child but one has to be the ,primary custodian,.

22. Which of the two becomes the primary custodian is subject to the agreement of both • Persons other than the parents, if they have physical custody of the child, or if its in the best interests of the child may also apply. • The Act seeks to ensure that a child is not discriminated on the basis of the

23. the marital status of his parents • The Act hence places both parents on an equal footing – the mother is no longer automatically the sole custodian or guardian of the child • In practice however, it is predominantly mothers that are the sole custodians

24. The Draft Namibian Child Care and Protection Bill reiterates that both parents of a child born out of wedlock have equal rights to the custody of a child • It does not seem that the child will have the right to know and be cared for by both parents

25. The Bill too, just like the Act, presupposes that the parents of children born out of wedlock are not living together • Both Acts have tried to remove the discrimination apparent with respect to inheritance for children born out of wedlock

26. Issues • Does the 2006 Act achieve equality for children born out of wedlock? • We think not – for the reasons that; • If, in the absence of a contrary court order, one parent has the sole custody and guardianship, then the child is deprived of joint parenting rights and responsibilities

27. The Act predominantly prefers the parents’ rights as opposed to the children’s rights approach • The provisions of the Act do not achieve de facto equality for children born out of wedlock, which is the apparent aim of the CRC, the ACRWC and CEDAW

28. The emphasis on custody – who, when and how to get it, does it not emphasize the parents’ rights at the expense of the child’s? Custody connotes the previous terms of parental authority and power • Further, in the Act, custody is conceived as a parent’s right as opposed to a right of the child to parental care

29. Thirdly, the designation of which parent is to be the sole custodian, by agreement, is not required to take account of the best interests of the child, and is rather more reflective of the respective power relations between the mother and the father of the child.

30. Although a court making a custody order is required to take account of the best interest of the child (see section 11(5) of the Children’s Status Act), the ex parte application procedure provided for the award of an interim order of custody in terms of that section neither requires the voice of the child to be heard, nor is the court yet compelled or enabled to require any expert testimony as to what would be in the best interests of the child.

31. Conclusion • Whereas it appears as though discrimination of children on the basis of their parents’ marital status is harmless, the substantive effect of the application of those provisions is to distinguish such children from those born within marriage. This violates the international standards on the rights and welfare of the child

32. Thank you