It would make for an interesting conversation when explaining to someone who left Kenya in 2000, right at the turn of the millennium, how the role of fathers has changed in the last 17 years.
Today’s father has new wars to fight that include the ever-increasing menace from smartphones and the social media, drugs getting more lethal and more available, the risk of radicalisation among others.
As Kenya joins many countries in celebrating World Father’s Day on Sunday, one area of focus in that discussion would be the way the laws applying to fathers have changed since the dawn of the millennium.
The Nation last week spoke with three Nairobi-based lawyers who handle family matters to discuss how Kenyan laws have transformed the role of fathers.
Lawmakers and the courts, it emerged, have made Kenyan fathers more accountable through various laws passed since 2000.
From the Children’s Act that came into effect in 2001 to the Constitution promulgated in 2010 to the Matrimonial Property Act operationalised in 2013 to Marriage Act that came into force in 2014, not forgetting the various court decisions made to interpret the role of the father, the consequences of fathering a child with a woman seem to be getting dire every passing day.
Because of the Constitution, for instance, nowadays the father is not necessarily the person whose DNA is in a child.
“Before the new Constitution was promulgated, there was the issue of parental responsibilities; that a father has responsibility for the child only if he has acknowledged that that child is his, either by his name being in the birth certificate, which required his consent, or by maintenance; by having provided pure maintenance for the child,” explains lawyer Elias Kibathi.
But because now the Constitution protects Kenyans against discrimination, children got an upper hand in claiming their fathers.
“Whether or not you are married, the father is still the father of the child and, therefore, it’s no longer necessary to have the consent of the father before issuance of a birth certificate,” added Mr Kibathi.
Brenda Mwalimu, another lawyer, said the Children’s Act 2001 gave fatherhood a whole new meaning.
“If a male applies to adopt a male child, he becomes a father. If a male accepts a woman who has a child and accepts this child into his family, he will be considered the parent,” she said.
Perhaps something of a relief for the modern-day father is that parties in a marriage can stay away from each other for a year without it being declared a broken down marriage.
The parties only need to go to court and file an agreement that they have agreed to live apart as indicated in the Marriage Act.
Mr Eddie Amadi thinks that is a win for men. “Traditionally, that would be viewed as desertion. But now a break is allowed,” said the lawyer.
Another revolutionary item from the Marriage Act is the provision that led to a gazette notice from the Attorney-General’s office on June 9.
Through the Registrar of Marriages, the AG’s office gazetted a directive that marriages that are classified as customary, which are the ones that allow polygamy, will have to be registered.
“Men are now allowed to have multiple wives. Traditionally, you’d find that it was just under Islamic law,” said Mr Amadi. “For men, it’s a win. You can have as many spouses as you please; as long as the other spouse has been notified, that’s sufficient.”
Besides the various pieces of legislation, decisions from courts have also set precedents that govern parenthood.
For instance there is a decision that rendered nugatory a line men used to say when they were opposing a DNA test — that it was an infringement to their privacy.
Nowadays, explained Mr Kibathi, that argument cannot save any man.
“Lawyers have tried to argue that that right to privacy prevents DNA examination.
But the High Court overruled that and argued that the best interest of the child, which is the overwhelming principle, will override the right to privacy,” said Mr Kibathi.
TAKE CARE OF CHILD
But even when a DNA test proves that you are not the father, the existing laws dictate that if the child was born while you lived with the woman, you are still obligated to take care of the child.
“If you’re married to a woman and you get a child, at the time of his birth if the two of you are married, you automatically have responsibility. The law does not strictly say this is a father. What it does is define fatherhood in terms of responsibilities and duties,” said Ms Mwalimu.
BECOME A FATHER
She added: “You may not necessarily be this child’s father through DNA but through one situation or another, you become a father. It doesn’t say you’re now the child’s father. It just says you now take up parental responsibility.”
But also, there has been relief for fathers with the laws that have been passed in this millennium. Mr Amadi said Article 53 of the Constitution is one such break because it says parents take equal responsibilities in raising a child.