The condition precedent – DNA as a prerequisite for birth registration

Law+Me
Sunday, 30 October 2016 1275 Views 0 Comments
The condition precedent – DNA as a prerequisite for birth registration

 

“In addition, appropriate changes must be made to the rules and forms regarding notification of births, to allow for the entry of the names of fathers of children born outside marriage to be entered in the births register and the children’s birth certificates. Needless to say, there needs to be provision for the time within which such applications are to be made, and for notice to the alleged fathers, as well as provision for DNA testing to be undertaken to establish paternity where it is denied.”

 

This is an excerpt from the landmark Judgment by Hon. Mumbi Ngugi in Petition No. 484 of 2014 at par.113, affirming the rights of children born outside wedlock regarding the registration of their births and entry of the name of the biological farther in the birth certificates of children falling under this category. In it, there are positive calls for effecting appropriate changes to ensure that the gains drawing root from the Judgment are properly enjoyed.

 

In my previous piece, but at what cost, I made mention of the current generational crisis-plumes of which smoke can be seen in the booming eminence of single-parenthood, irresponsible parents, murky marriages and a disjointed society. This I recount today for the sake of posterity, our children’s children to whom we owe the very best of us. Countless are the times that our children have been victim of these current realities and oft times, unwarranted.

 

Just as we have at some point in time been graced with the innocence of infancy, be it in person or through others; a joyous occasion to receive and extend tender love to new life; to experience in part the beauty of continuity, so do we owe the same, if not better, to our children. And yet still, even though some of us can seldom boast the same and many the times, not by choice…the positive obligation stands nevertheless for the sake of the heartbeat of the society, our children.

 

Through the law we can claim that there have been legitimate attempts at bridging the gap, or better still guaranteeing the rights of the child. A true testimony that the law indeed is sending these gaps into a deserved state of forgotten historical footnote. But as Jonathan Sacks posits, true freedom requires the rule of law and justice, and a judicial system in which the rights of some are not secured by the denial of rights to others. The equipoise.

 

And here’s why we quote sacks…

 

While it may have been a hoax as described by the South African Department of Home Affairs, the appetite aroused by rumours of introducing compulsory DNA testing requirements in the country as a condition for registration of new births, more particularly, confirming the paternity of the father before entry of their surname in the child’s birth certificate, cannot be ignored. And the issue of paternity is not novel. In fact, in the traditional African society, so heinous were the consequences of ‘planted’ paternity that garnering the courage to frame or impose a child within a clan was in itself murderous malice aforethought.

 

Today however, the intricacies of traditional practices have been reduced to tales of yore. That during our time this is what used to happen, this is how it was dealt with and the consequences were so and so. But even in the prominence of this was that and that was this, the importance of some of the experiences of yester-years have by leaps and bounds defined our current approaches-for in every story there are both tragic and glorious pages each from which we can refer or ape as we stride on wards.

 

And while the law might appear to respond to the realities of the day, it can also be argued that it somehow seeks to ooze an aura of sanity in what would otherwise prove cataclysmic. That through a law requiring DNA testing for instance, the rights of children as enshrined under Article 53 of the Constitution can be realised, and probably not at the expense of a ‘framed’ father. That challenges of the day that adversely affect our children can be addressed in toto. That children as the linchpin of our current pursuits and our trustees to posterity, can enjoy the full benefits of childhood including the right to a name (father’s surname),  to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not BUT subject to ascertainment of paternity. For that is what proponents of a possible DNA Law as pertains paternity would demand. Now are we ready?

 

 

 

Senaji Anyanje

Kenya Is an ICT law consultant , a child's rights enthusiast and avid writer , poet as well as a sports fanatic.

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