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After 32 long years without a law protecting children born out of wedlock, The Children’s Act could not have come sooner. Among other things, the Act seeks to make provision for paternal responsibility, custody and maintenance of children. It was given assent by the President on December 31, 2001. Between then and 1969, when the Affliction Act was thrown out by Parliament, the country had no law catering for illegitimate children.

The new Act places the responsibility of paternal care on a father and mother if the two are married to each other. However, where the two are not married, the father can only be responsible if he has acquired parental responsibility. 

According to Section 25 of the Act, a father acquires parental responsibility only if he:

  1. Applies to court for such an order
  2. He and the mother have agreed thereon
  3. He and the mother have, subsequent to the birth of the child, lived together for a period or periods of not less than twelve months
  4. He has acknowledged paternity
  5. Has maintained the child

 

It is worded in permissive terms that give wide discretion to court

The Act attempts to re-introduce affiliation without experiencing the opposition that was faced by its precursor in Parliament in 1969. For instance, though the Act says the parents should have cohabited for periods of not less than 12 months, it does not say what duration such periods should fall. It is therefore worded in permissive terms that give wide discretion to the court.

Another area prone to abuse is where the Act says that the father will acquire parental responsibility if he “has acknowledged” paternity of the child. The provision is in the past tense, and it would mean that if a claimant brought forth a witness who testified that sometimes five years ago the man acknowledged paternity once, the requirements of the law are fulfilled.

The Affliction Act was stricter than the new law

Similarly, when the law says that a man will acquire parental responsibility if he “has maintained the child,” lots of room is left for abuse. If a man and a woman have got a child following a relationship, it is more likely than not that some financial relationship does also exist. Any shilling that may have passed from the man to the woman during her pregnancy or after would fulfil the requirements of section 25.

While it was intended that any law to replace the Affliction Act should deal with the possibility of abuse, the Children’s Act fails to do that. The provisions of the Affliction Act itself were stricter than those of this new law. The former Act not only required a hearing to be first held on the woman’s allegations, it also required that her evidence be corroborate in some material particular by other evidence. 

The former Act also had two other ways of protecting itself from abuse. Firstly, it created a criminal offence for any person who misapplied money paid by the putative father and also put a limit to the monthly amount payable. The set amount was Sh 200 per month, which was substantial in 1969.

The new Act does not have such protection. It instead expands the amount recoverable to an indeterminable level. For instance, the court can provide for the payment for “any aspect of the maintenance of the child, including but not limited to matters relating to the provision of education, medicare, housing and clothing”. In doing so, the court is empowered to have regard to “the circumstances of any of the child’s siblings.”

So if the man’s six legitimate children go to school in a Mercedes Benz, the court can order that the one illegitimate child be provided with one. If the legitimate children live in a mansion, the illegitimate one must also be provided with one. The Children’s Act creates the atmosphere under which it can invariably be abused and, maybe, eventually repealed.

The onus of saving this law lies with the Judiciary. It is how courts apply this Act that will determine its chances of survival. Despite its permissive wording, it is up to the Judiciary to apply strict and fair rules in the determination and ensure that the Act is there to protect and provide for children and not to be used by mothers to enrich themselves.

The judiciary must ensure that the Children’s Act does not tilt the balance and serve interests for which it was not promulgated.