By Frida Chausiku
For a long time, many women have been chasing after the men who sired children with them for maintenance. The law is now very clear under Article 53(1) (e) of the Constitution of Kenya,2010 that whether they are married or not, both the father and the mother have an equal responsibility to provide for the child. Furthermore, the child’s best interests are of paramount importance in every matter concerning the child.
We keep asking ourselves why the society has changed and especially why the “children of today”are behaving how they are behaving. The answers and solutions to some of these questions and concerns lie well with us. Most of these problems are as a result of absentee fathers/mothers and irresponsible parenthood. These can be solved.
Children are a vulnerable lot in the society, unable to defend themselves thus every person has the obligation to protect and come to their aid at any point when their rights have been violated, infringed or threatened.
Article 53 of the Constitution of Kenya, 2010 provides for the rights of children to include the right to name and nationality, free and compulsory education, to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment and hazardous or exploitative labour, the right to parental care and protection and the right not to be detained except as a measure of last resort.
Human rights are universal, indivisible, inherent and inalienable. This means thatevery child in the world is entitled to every right collectively. A right is an entitlement, so as every child is born, his or her rights are born too.
Parental responsibility is not only limited to providing material things such as food, clothing rent and or school fees for the child but also extends to love and affection which is expressed through availing oneself to be with the child.
Kenya has also ratified several international instruments, which uphold this right to parental responsibility. The major international instrument is the African Charter on the Rights and Welfare of the Child, 1990which builds on the 1979 Declaration on the Rights and Welfare of the African Child.
Its Preamble clearly provides that “the child occupies a unique and privileged position in the African society” and requires legal protection as well as “particular care with regard to health, physical, mental, moral and social development.” Kenya is thus obligated, internationally to protect and uphold the rights of all children.
When the court orders you to maintain your child, it does so in observance of the national, regional and international laws.
To institute a suit for maintenance one needs to approach the court through a document called a Plaint which outlines the circumstances and the prayers for maintenance one is seeking, which is not a complex process, where upon proving that the child belongs to the Defendant in the suit,who in many cases are men, the court awards the maintenance.
The court, in addressing issues of maintenance is usually alive to the provisions on survival and best interest of the child as espoused by Section 4(i), (2) (3) (a) (b) (c) of the Children Act which provides as follows;
“S.4(1) Every child shall have an inherent right to life and it shall be the responsibility of the Government and the family to ensure the survival and development of the child.
(2) In all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
(3) All judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to –
(a) safeguard and promote the rights and welfare of the child;
(b) conserve and promote the welfare of the child;
(c) secure for the child such guidance and correction as it necessary for the welfare of the child and in the public interest.”
Men, do not wait to be sued for maintenance. It is never an excuse that you are not endowed with the resources to maintain that child.
By the time one (a man or woman) engages in any activity that could lead to a child being conceived; they are aware of the consequences and therefore should be ready for them. We do not want to witness other instances of children resorting to social media to search for their missing parents and asking God why their parents chose to run away from them.
This is for everyone to reflect on, since some men have even failed to comply with the court orders to maintain their children; if the person who brought you up, who could be your parent or a guardian had not protected, maintained and loved you, you would not have been where you are today. Be proud of your blood that flows in others!
Frida is a Legal Practitioner based in Nairobi