In Kenya, children born out of wedlock may never get to know their fathers, courtesy a section of the country's Children's Act. In such cases, the Act absolves fathers of all parental responsibilities. Recently, a six-year-old girl in Nairobi appealed for a review of the law, stating that the Act placed her and other children like her in a disadvantaged position compared to other children whose parents were married or whose fathers had subsequently married their mothers.  

But an all-male bench of the Constitutional Court struck down the appeal, saying there was not enough valid reason to rewrite the contentious clause. "We find and hold that Section 23(4) and by extension Section 25 of the Act do not offend the principle of equality... We further hold that the principle of equality and non-discrimination does not mean that all distinctions between people are illegal," ruled justices Joseph Nyamu and Mohammed Ibrahim.

In an unprecedented 76-page ruling, the two judges said that the Act was 'morally acceptable'. "The Act, including the challenged sections, captures the issues of parental responsibility in a manner never done before in the history of the rights of the child in this country. It would be a great tragedy for the court to accept the invitation to strike them out or hold that the subsection is unconstitutional," they said.

The Children's Act came into being in 2002. The controversial Section 24 (3) states in part that, "Where a child's father and mother were not married to each other at the time of the child's birth and have not subsequently married each other: a) The mother can have parental responsibility of the child at the first instance; b) The father can subsequently acquire the parental responsibility of the child in accordance with provisions of Section 25."

But, strangely, Section 25 insists on a single mother meeting a certain criteria for the father of the child - born out of marriage - to assume and discharge parental responsibility. This criterion is that the mother and father have to live under the same roof for a minimum period of six months in order for the father to assume and discharge parental responsibility of a child.

Supported by the Federation of Kenyan Women Lawyers (FIDA) and Kenya Human Rights Organization, the child had sought to strike down these sections, so that fathers no longer had the option of deciding whether or not they wanted to support such children. Says the child's lawyer Judy Thogori, "Not only does the current law not conform with the international charters and conventions that generally protect all children, but it is also discriminatory to unmarried women."

The ruling has not gone down well with women's rights advocates and civil rights activists and has triggered a widespread debate on the issue. Says UNICEF country office spokesperson Elizabeth Hemeinton, "Today, the laws of modern states take cognizance of the fact that parents, irrespective of the marital status, have a shared responsibility of caring for a child that they have had a hand in siring. Instead, the Children's Act in Kenya emboldens men to act irresponsibly in matters of sex because they know they cannot be prosecuted for not taking care of their children so long as they are not legally married."

According to Irene Muriithi, Executive Director, Child Welfare Society of Kenya, the Act fails to insulate children born outside the country's five forms of legally recognizable forms of marriage - Civil, Christian, Traditional, Islamic and Hindu - should a father opt not to take the responsibility of bringing up the child. "In its current form, the Children's Act places the onus exclusively on a mother should a child be sired in a union that is not recognized by law. The Act perpetrates a form of sexism because in such cases, the mother is solely responsible for bringing up the child," she says.

Kilifi, a coastal town in Kenya, is infamous for having a large number of young single mothers. "This phenomenon of single mothers is borne out of economic needs. In the past, when the phenomenon of extended families was prevalent in Africa, instances of women bearing children out of wedlock were rare as the cultural mores and ethics at that time did not allow casual sex. But that has changed now. Today, sex has become commodified and glamorized," opines Dr Wanjohi Kibakuri, a sociology lecturer at the University of Nairobi.

Jane Kiano of Maendeleo Ya Wanawake Organization, Kenya's umbrella representative of women's interests, feels that unless women seek elective positions in public office, particularly the parliament, it's unlikely that the law will change soon. "All over the world, women are being empowered by affirmative action legislative. But if the Children's Act is anything to go by, then it means that Kenyan women are still living under a legal regime that spites them." In the 222-seat Kenyan parliament, currently, there are only 14 women legislators.

Talking about the moral aspect, Koigiwa Wamwere, Deputy Minister for Communications and Telecommunications, argued that the court ruling should not be seen from a gender angle but rather from a general societal point of view. "A lot of nay-sayers, particularly women's activists, will not fail to see a male prejudice in the ruling bearing in mind that the two judges were male. But the truth of the matter is that the case should spur the country to reflect on what has gone wrong with its morals that a child should become collateral damage when two grown-ups are fighting over what should be a straightforward issue; which is that both parents are duly responsible for any and all children that they sire."

What are the options for such children? In some cases, the extended family takes care of the child or chip in to bring up the child. There have also been instances
- but rare - of fathers volunteering to take care of children but that never surfaces in the public domain because normally it's a private agreement between the mother and the father. However, there are no welfare schemes for children born outside wedlock. Even chances of adoption are dim, as it is not a common practice in Kenya.

So, will there be an appeal against the ruling? There have been talks of appealing in the public courts, but till that happens, in the words of Haruon Ndubi, an advocate, "Women are seriously disadvantaged... Their male counterparts can and will continue siring children without the worry of taking care of a child."