RM and Cradle v. Attorney General
High Court, Constitutional and Judicial Review Division
1 December 2006
Other International Provisions:
African Charter on the Rights and Welfare of the Child (1999), Articles 3, 4, 18, 20
Convention on the Elimination of Discrimination Against Women (1979), Articles 2, 16(1)(d)
Bangalore Principles (1989)
Constitution (Kenya), as amended (1997), Article 82 (prohibition on discrimination)
Children Act No. 8 of 2001 (Kenya), Sections 24(3) (assigning parental responsibility to the mother where the parents are unmarried), 25 (when parental responsibility will be shared by unmarried parents)
The case was brought by a mother on behalf of her child against the Attorney General, although several notable non-governmental organisations also joined in the case as interested parties, including CRADLE – the Children’s Foundation, Kenya. The child involved had been born out of wedlock, although the mother and father were living together at the time of the birth. The father, who had paid the hospital expenses after the birth, and who had shaved the child’s head and named her after his mother in accordance with his tribe’s customary law, disappeared when the child was approximately four months old. Because the father thereafter failed to give any parental support, the mother brought this case to challenge Section 24(3) of Kenya’s Children Act (Section 24(3)), which places parental responsibility for children of unwed parents solely with the mother. She argued that this was discrimination in violation of the CRC, the African Charter on the Rights and Welfare of the Child and the Constitution because it disadvantaged her child compared to children with married parents.
Issue and resolution:
Discrimination. The Court concluded that Kenyan law did not unfairly discriminate against children born out of wedlock. Specifically, The Court stated that the Children Act should be viewed as a collection of the “best provisions” from international conventions and prior Kenyan law, and held that it does not offend the constitutional principles of equality and non-discrimination because some distinctions – such as the one at issue here – are reasonable and legitimate.
The Children Act has already taken into account the principles of the CRC and the African Charter on the Rights and Welfare of the Child, and matters of parental responsibility are not covered by customary international law. When national law is clear, but inconsistent with international obligations, national law must prevail in the Courts. The Kenyan Constitution’s provisions on non-discrimination and equal protection also do not cover discrimination against children born out of wedlock. The Children Act has a clear and reasonable purpose, and declaring it to be unconstitutional would work against both the original aims of the legislation and the best interests of the child. The Children Act should be viewed as “a milestone in entrenching and securing the rights of the child”, and it should be noted that Section 24(3) is a vast improvement over the scattered laws on parental responsibility that it replaced.
Excerpts citing CRC and other relevant human rights instruments:
It has been argued [by the applicant] that s 24(3) of the Children Act is discriminatory against children born out of wedlock whose parents are not married to each other either at the time of the child’s birth or subsequently thereafter. The argument is that the discrimination is on social origin, birth or other status which is that the child cannot benefit and enjoy parental responsibility from both the mother and father because of the status of the mother, a single mother. For this reason the Court is urged to hold that s 24(3) is inconsistent with the United Nations Convention on the Rights of the Child which Convention was intended to be domesticated by the passage of the Children Act. It is submitted that the section should be declared discriminatory and null and void.
The argument by the applicant is that [CRC] article 18(1) envisages the principle that both parents have joint primary responsibility for bringing up their children. There should be no distinction that the child is born within or out of wedlock. Thus children born out of wedlock are being victimized for something they have no control over, the children cannot decide whether they want to be born either within or out of a subsisting or subsequent marriage of their parents. Kenya should therefore as a State implement the provisions of the Convention without any reservations because she did not seek any when she ratified the Convention.
[The Attorney General put forward the argument that … ] the [Children] Act repealed and consolidated all statutes on child legislation – The Children and Young Persons Act, The Adoption Act, and the Guardianship of Infant Act. In addition principles in the International Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child were taken into consideration.
Alternatively, we have been urged [by the applicant] to adjudicate in terms of the Conventions reproduced above, and which have specifically included the terms “other status”.
The applicant has argued that Part II of the [Children] Act and in particular s 5 prohibits discrimination on the basis of birth or other status among other grounds. This is in conflict with s 24(3) of the same Act. As the Act was meant to domesticate the Convention on the Right of the Child and the African Charter the Court has been invited to hold that Part II must prevail in the face of the apparent conflict.
Even if we adopted the Andrew Case or the Westminister or the Dow Cases (SUPRA) and expanded the Constitutional categories and definition we would still not find for the applicant because of what we have said elsewhere in this judgment concerning the non-restrictive approach adopted [ ] by the United Nations monitoring bodies in interpreting the Universal Declaration and the Covenant on Civil and Political Rights. The additional reason for not taking the path of the cases relied on above is that in our view they fail to recognize “the States[’] margin of appreciation” as defined in the ever expanding international jurisprudence (…).
Finally we cannot uphold the applicant in the face of the Bangalore Principles concerning the position of the Conventions vis a vis the States[’] Constitutions. Where there is no ambiguity the clear provisions of the Constitution prevail over the International Conventions.
After analyzing the case law cited to us by the applicant[’]s counsel including the Interested Parties[’] counsel we prefer reinforcing the three relevant [Bangalore] principles set out elsewhere in this judgment to the effect that the States[’] clear constitutional provisions should prevail over those of the Conventions. It follows that the clear provisions of s 82 and the limitations must prevail and we so hold. It is only where an Act intended to bring a Treaty into effect is itself ambiguous or one interpretation is compatible with the term of the treaty while others are not that the former will be adopted. This is in recognition with a presumption in our law that legislation is to be construed to avoid a conflict with international law.
It is strikingly clear that article 2 of the Universal Declaration [of Human Rights 1948] prohibits distinction of any kind. The obvious interpretation is that no differences at all can be legally accepted. However the situation on the ground does not support such a restrictive interpretation of the Declaration in that the monitoring bodies have not supported any such interpretation and in some of the constitutions of the member states including that of Kenya do not support the position as stated in article 2. The Member States have claimed and have been allowed “a margin of appreciation” because differences in real life are inevitable and they are not necessarily negative. Indeed, international jurisprudence and supporting case law demonstrates that not all distinctions between persons and groups of persons can be regarded as discrimination in the strict sense or true sense of the term. Thus General Comment No. 18 in the United Nations Compilation of General Comments, p 134 para 1 lays what appears to be a peremptory international norm (jus cogens) in these words:
“non discrimination, together with equality before the law and equal protection of the law without any discrimination constitute a basic and general principle relating to the protection of human rights.”
The second principle which is now generally accepted and which does not support a restrictive interpretation is that distinctions made between people are justified provided that they are, in general terms reasonable and imposed for an objective and legitimate purpose.
The [United Nations] Human Rights Committee has commented that the enjoyment of rights and freedoms on an equal footing does not mean identical treatment in every instance. Taking the ICCPR as an example article 6(5) prohibits the death sentence from being imposed on persons below 18 years of age and from being carried out on pregnant women. The other obvious example is affirmative action which is aimed at diminishing or eliminating conditions likely to perpetuate inequality or discrimination in fact. Such a corrective action constitutes or is termed legitimate differentiation under the ICCPR.
It is therefore an accepted international principle of law that differentiation based on reasonable and objective criteria does not amount to prohibited discrimination. A state which complies with this criteria would not be faulted in practice or in its formulation of a supporting law provided this criteria is adhered to.
In the circumstances we have no hesitation in finding that the challenged subsection 24(3) on the mother’s initial responsibility and the father in the situations described in the subsection and 25 have a legitimate purpose and are based on the realities of the relationships and the rights of all those concerned. A law that does not recognize the right of all concerned including those disputing paternity would be unrealistic and unreasonable and would be contrary to justice, to reason and to the nature of things.
This is why this Court agrees with UN General Comment supra pp 104-106 paras 55-57 and we take the liberty of reproducing:
“57. Accordingly, the discrimination does not exist if the difference in treatment has a legitimate purpose and if it does not lead to situations which are contrary to justice, to reason or to the nature of things. It follows, that there would be no discrimination in differences in treatment of individuals by a state when the classifications selected are based on substantial factual differences and there exists a reasonable relationship of proportionality between these differences and the aims of the legal rule under review. These aims may not be unjust or unreasonable, that is, they may not be arbitrary capricious, despotic or in conflict with the essential oneness and dignity of human kind.”
Thus, in the case of our Parliament it did address the measures set out in the cited Conventions and choose only those measures which are considered suitable to the local situation. Parliament had no obligation to adopt, line hook and sinker, the provision of the Conventions in formulating the Children Act. It had a margin of appreciation reserved to the State as defined above.
It must be recalled that the [Children] Act took the best provisions of the repealed Children and Young persons Act, Guardianship – Adoption of Infants Act and other laws affecting children and the relevant International Conventions among others and codified them as one. The Act including the challenged section(s) captures the issue of parental responsibility in a manner never done before in the history of the rights of the child in this country and it would be a great tragedy for the Court to accept the invitation to strike them out or to hold that the subsection is unconstitutional. If the Court were to do so the gap in meeting the overriding interest of the child would be immediately retrogressive and unforgivable.
Despite this decision, domestic courts and domestic and international organisations continue to urge reform of these provisions of Kenya’s Children Act.
In June 2007, the United Nations Committee on the Rights of the Child issued its Concluding Observations on Kenya’s Second Periodic Report on the implementation of the CRC. In its Observations, the Committee still expressed concern at the “de facto discrimination faced by children born out of wedlock,” and urged Kenya to “continue [to] revis[e] all its legislation in order to bring it into full compliance with article 2 of the Convention, and to ensure full implementation of all legal provisions.” See UNCRC Concluding Observations, paras. 25-26.
In advance of the 39th Session of the U.N. Committee on the Elimination of All Forms of Discrimination Against Women (July 23 – August 10, 2007), the Federation of Women Lawyers – Kenya (FIDA Kenya) submitted a report to the Committee stating that “in Kenya children born out of wedlock are one group that is being discriminated against,” even though “the principle of non-discrimination is well established in most international conventions to which Kenya is a party to and in the Kenya’s Constitution as well as in the Children’s Act.” FIDA Kenya urged the U.N. Committee to consider pressing the Kenyan government on when it would repeal these provisions under the Children’s Act. See “Shadow Report to the 5th and 6th Combined Report of the Government of the Republic of Kenya, on the International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),” p. 29.4
In its Concluding Comments following those meetings, the U.N. Committee on the Elimination of All Forms of Discrimination issued recommendations to Kenya, including that “[Kenya] strengthen measures to ensure that fathers contribute to the upbringing of their children born out of wedlock.” See Concluding Comments, August 10, 2007, para. 44.5
On May 23, 2008, an appeals court in Kenya looked at the same provisions of the Children’s Act involved in this case and urged legislative reform. Specifically, the judge observed that “[Section 25 of the Children Act] has been criticised and rightly so, for offering differential treatment or for discriminating against children borne out of wedlock. I do not intend to go into a discourse into the provision of section 25(1) of the Act, save to comment that it is the high time Parliament deemed it fit to amend the Act and make it possible for either the mother, child, guardian or anybody to make an application for parental responsibility even for a child born out of wedlock.” See JGM v CNW , Civil Appeal No. 40 of 2004, at p. 6.6
CRIN believes that this decision is inconsistent with the CRC, and that Kenyan law continues to violate the Convention’s principle of non-discrimination. Under the CRC, no distinction should be made between children born to married mothers and those born out of wedlock as all children have the right to build relationships and receive support from both parents. Alongside the UN treaty bodies, CRIN urges Kenya to reform its Children Act and remedy the discrimination faced by children born to unmarried mothers.
Civil Case 1351 of 2002 (Kenya 2006)
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