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Kenya Law / Blog / Case Summary: Section 10 of the Births and Deaths Registration Act is unconstitutional as it prevents unmarried fathers from registering their child’s birth under their surname in the absence of the mother or without her consent thereby unfairly discriminating against children born to unmarried parents

Section 10 of the Births and Deaths Registration Act is unconstitutional as it prevents unmarried fathers from registering their child’s birth under their surname in the absence of the mother or without her consent thereby unfairly discriminating against children born to unmarried parents

Centre for Child Law v Director General: Department of Home Affairs and Others [2021] ZACC 31

CCT 101/20

Constitutional Court of South Africa

Mogoeng CJ & J; Jafta, Khampepe, Madlanga, Majiedt, Mhlantla, Theron, Tshiqi, JJ and Victor, Mathopo AJJ

September 22, 2021

Reported by Faith Wanjiku

Download the Decision

Constitutional Law- Bill of Rights -rights of a child born out of wedlock-requirements of consent from mothers before child registration of birth by an unmarried father -whether prohibiting an unmarried father from registering a child’s birth in the mother’s absence resulted in unfair discrimination (in respect of both the father and the child) and an infringement of their dignity therefore violating the Constitution- what factors had to be determined on whether a discriminatory provision was unfair- Constitution of the Republic of South Africa, 1996, section 28; Births and Deaths Registration Act 51 of 1992, section 10.

Statutes- interpretation of statutory provisions – constitutionality of statutory provisions- requirements of consent from mothers before child registration of birth by an unmarried father-whether section 10 of the Act prohibited an unmarried father from registering a child’s birth in the mother’s absence resulting in unfair discrimination (in respect of both the father and the child) and an infringement of their dignity therefore violating the Constitution- Constitution of the Republic of South Africa, 1996, sections 28,39(2) ; Births and Deaths Registration Act 51 of 1992, section 10.

Statutes- interpretation of the statutory provisions- sections 9 and 10 of the Act-requirements of consent from mothers before child registration of birth by an unmarried father- registration of the child’s birth and issuance of the child’s surname - what was the proper interplay between sections 9 and 10 in relation to registration of the child’s birth and issuance of the child’s surname- Births and Deaths Registration Act 51 of 1992, sections 9, 10.

Statutes- interpretation of the statutory provisions – principles for interpretation of statutory provisions-what were the fundamental tenets in interpretation of the statutory provisions.

Brief facts:

In 2016, Menzile Lawrence Naki (3rd respondent), a South African man, and Dimitrila Marie Ndovya (4th respondent), a woman who was a citizen of the Democratic Republic of Congo (DRC), sought to register the birth of their daughter, born in Grahamstown on February 1, 2016, with the Department of Home Affairs (Department) in Grahamstown. Before their daughter’s birth, the 4th respondent travelled to and from South Africa to the DRC on a visitor’s visa. Shortly before their daughter was born, her visa expired. Due to her pregnancy, she could not renew the visa or travel back to the DRC.

The Department refused to register the child’s birth on the basis that the 4th respondent lacked a valid visa or permit and could not comply with certain Regulations on the Registration of Births and Deaths, 2014 (Regulations). The couple subsequently brought an application to the High Court to review and set aside the decision refusing to register their daughter’s birth, and challenged the constitutionality of the relevant Regulations. The Centre for Child Law was admitted in the High Court as an intervening applicant. It sought orders declaring sections 9 and 10 of the Births and Deaths Registration Act 51 of 1992 (the Act) and sub-regulations (3) and (5) of Regulations 3, 4 and 5 and Regulation 12(1) of the Regulations unconstitutional.

The High Court held that, on a proper construction, the first reference to mother in section 10(2) was intended to be father, and on their current formulation, sections 9 and 10 of the Act did not prohibit unmarried fathers from, registering the births of their children in the absence of the mother who gave birth to such children. It held that the requirement was that such children had to be born alive, in which case any one of the parents, regardless of their marital status, would be able to give notice of the birth. The sections could thus be interpreted to be constitutionally compliant. The relief relating to the registration of the child’s birth was granted. With leave, the Centre for Child Law appealed to the Full Court on the question of the constitutional validity of section 10.

The Full Court disagreed with the approach taken by the High Court. It found that the High Court’s interpretation of section 9 failed to consider that the notification of any child born alive was subject to the provisions of section 10. Section 10 was thus the mechanism through which the content of the notice in section 9 was fulfilled. The Full Court found that, even though section 9 empowered an unmarried father to give notice of his child’s birth, the exercise by an unmarried father of his right under section 9(1) was contingent on either the mother’s presence or her consent, in terms of section 10. In effect, section 10 presented a bar to a father giving notice of the birth of his child under his surname in the mother’s absence. The Full Court thus declared section 10 invalid and inconsistent with the Constitution of the Republic of South Africa, 1996(Constitution). The declaration was suspended for 24 months to allow Parliament to cure the defects. As an interim remedy, the Full Court read words into the section to apply during the period of suspension.

Before the Constitutional Court, the applicant sought confirmation of the order of the Full Court in terms of section 172(2)(a) of the Constitution. It submitted that the declaration of constitutional invalidity be suspended for a period of 18 months. The applicant contended that section 10 of the Act was unconstitutional because it prevented unmarried fathers from registering their child’s birth under their surname in the absence of the mother or without her consent. The applicant submitted that the differentiation between standards applicable to children born within or outside of wedlock was arbitrary, and section 10 thus unlawfully discriminated against both unmarried fathers and children born out of wedlock on various grounds, with the result that children born out of wedlock were not able to fully realise certain constitutionally guaranteed rights.

Issues:

  1. Whether section 10 of the Act prohibited an unmarried father from registering a child’s birth in the mother’s absence resulting in unfair discrimination (in respect of both the father and the child) and an infringement of their dignity therefore violating the Constitution.
  2. What was the proper interplay between sections 9 and 10 in relation to registration of the child’s birth and issuance of the child’s surname?
  3. What were the fundamental tenets in interpretation of the statutory provisions?
  4. What factors had to be determined on whether a discriminatory provision was unfair?

Relevant provisions of the law

Constitution of the Republic of South Africa, 1996

Section 28-Children

Every child has the right— (a) to a name and a nationality from birth;

. . .

(2) A child’s best interests are of paramount importance in every matter concerning the child.

Births and Deaths Registration Act 51 of 1992
Section 9- Notice of birth

(1) In the case of any child born alive, any one of his or her parents, or if the parents are deceased, any of the prescribed persons, shall, within 30 days after the birth of such child, give notice thereof in the prescribed manner, and in compliance with the prescribed requirements, to any person contemplated in section 4.

(1A) The Director-General may require that biometrics of the person whose notice of birth is given, and that of his or her parents, be taken in the prescribed manner.

(2) Subject to the provisions of section 10, the notice of birth referred to in subsection (1) of this section shall be given under the surname of either the father or the mother of the child concerned, or the surnames of both the father and mother joined together as a double barrelled surname.

(3A) Where the notice of a birth is given after the expiration of 30 days from the date of birth, the birth shall not be registered, unless the notice of the birth complies with the prescribed requirements for a late registration of birth.

Section 10 – Notice of birth of illegitimate child

(1) Notice of birth of child born out of wedlock shall be given—

(a) under the surname of the mother; or

(b) at the joint request of the mother and of the person who in the presence of the person to whom the notice of birth was given acknowledges himself in writing to be the father of the child and enters the prescribed particulars regarding himself upon the notice of birth, under the surname of the person who has so acknowledged.

(2) Notwithstanding the provisions of subsection (1), the notice of birth may be given under the surname of the mother if the person mentioned in subsection (1)(b), with the consent of the mother, acknowledges himself in writing to be the father of the child and enters particulars regarding himself upon the notice of birth.

Held:

  1. Section 39(2) of the Constitution provided a guide to statutory interpretation under the constitutional order. It created an obligation to interpret all legislation in a manner that promoted the spirit, purport and objects of the Bill of Rights. That meant that all statutes, including section 10 of the Act, had to be interpreted through the prism of the Bill of Rights. When the constitutionality of legislation was in question, a court had to examine the objects and purport of that legislation and read the provisions of the legislation, as far as was possible, in conformity with the Constitution. A judicial officer had to prefer an interpretation of legislation that fell within constitutional bounds over one that did not, provided that such interpretation could be reasonably ascribed to the legislation. However, limits had to be placed on the application of that principle.
  2. The Legislature was under a duty to pass legislation that was reasonably clear and precise, enabling citizens and officials to understand what was expected of them. A balance would often have to be struck as to how that tension was to be resolved when considering the constitutionality of legislation. There would be occasions when a judicial officer would find that the legislation, although challenged as to its constitutionality, was reasonably capable of being read in conformity with the Constitution. Such an interpretation should not, however, have unduly strained the language of the legislative provision.
  3. Section 10 of the Act undermined the role an unmarried father could play in the naming aspect. The parental rights of unmarried fathers were conditional in the sense that they were dependent on the status of their relationship with the mothers. The differentiation which the impugned law drew between married fathers and mothers on the one hand, and unmarried fathers on the other, infringed the rights of an unmarried father to equal protection and benefit of the law. However, because the grounds of differentiation in the case, namely sex, gender and marital status were listed grounds in terms of section 9(3) of the Constitution, that could also raise questions of unfair discrimination.
  4. In giving effect to the constitutional principles of equality, it was instructive to consider the principles distilled from Harksen v Lane N.O. [1997] ZACC 12 (Harksen). The first enquiry had to be directed to the question whether the impugned provision differentiated between people or categories of people. If it did differentiate, then there had to be a rational connection between the differentiation in question and the legitimate government purpose it was designed to further or achieve.
  5. Applying the first stage of the Harksen enquiry to the facts at hand, it was clear that the impugned law differentiated between married and unmarried fathers in relation to their capacity to confer their surname onto their new-born child when giving notice of their child’s birth. In addition, the impugned law differentiated between mothers (irrespective of their marital status) and unmarried fathers (as a category).
  6. No legitimate government purpose was advanced by distinguishing between married and unmarried fathers, at least not in respect of their capacity to register their new-born child’s birth and confer their surname on him or her. Nor was there any legitimate basis for the gendered differentiation of the conferral of a surname where a child automatically bore the mother’s surname but could not assume their father’s surname. As such, even on the first stage of the Harksen enquiry, the impugned law would be liable to be declared unconstitutional and invalid.
  7. Section 9(3) of the Constitution prohibited unfair discrimination on several grounds including sex, gender and marital status. In evaluating whether there was unfair discrimination, it was important to keep in mind the Constitution’s commitment to substantive equality and establishing a non-sexist society.
  8. A consideration regarding the validity or otherwise of section 10 was the extent to which it infringed the rights of unmarried fathers. When a child was born, the rights of both the mother and father should become vested. While a father could elect not to be legally recognised as the child’s parent by simply absconding from his parental role, his position was rather precarious if he actually wanted to be legally recognised as the child’s father. His recognition would, to a large extent, depend on the mother’s co-operation. That begged the questions whether marital supremacy was a necessity for the registration process for the surname of his child and whether the concept of marriage was even a factor in the registration process. A marital neutral approach would better give effect to substantive equality as envisioned in the Constitution.
  9. Section 10 of the Act provided for differential treatment of an unmarried father. The Children’s Act recognised the role of both parents in bringing up a child. It was both parents that bore the primary responsibility to care for their child, as was provided for in the Children’s Act and, it was a child’s right to bask in the parenting of both parents, irrespective of their marital status. Section 10 of the Act was problematic because it perpetuated stereotypical gender roles and the assumption that child-care was inherently a mother’s duty.
  10. To determine whether that impact was unfair it was necessary to look not only at the group who had been disadvantaged but at the nature of the power in terms of which the discrimination was effected and, also at the nature of the interests which had been affected by the discrimination. The prohibition on unfair discrimination sought not only to avoid discrimination against people who were members of disadvantaged groups. It sought more than that. At the heart of the prohibition of unfair discrimination lay a recognition that the purpose of the new constitutional and democratic order was the establishment of a society in which all human beings would be accorded equal dignity and respect regardless of their membership of particular groups.
  11. In order to determine whether the discriminatory provision was unfair, various factors had to be considered.
    1. The position of the complainants in society and whether they had suffered in the past from patterns of disadvantage, whether the discrimination in the case under consideration was on a specified ground or not;
    2. the nature of the provision or power and the purpose sought to be achieved by it. If its purpose was manifestly not directed, in the first instance, at impairing the complainants in the manner indicated above, but was aimed at achieving a worthy and important societal goal, such as, for example, the furthering of equality for all, that purpose could, depending on the facts of the particular case, have a significant bearing on the question whether complainants had in fact suffered the impairment in question;
    3. with due regard to (a) and (b) above, and any other relevant factors, the extent to which the discrimination had affected the rights or interests of complainants and whether it had led to an impairment of their fundamental human dignity or constituted an impairment of a comparably serious nature.

    Those factors, assessed objectively, would assist in giving precision and elaboration to the constitutional test of unfairness.

  12. The impugned law established a prejudicial distinction between married and unmarried fathers. The impact on unmarried fathers was clear. They could not register the birth of their child with their surname without the mother’s consent or presence. The unmarried father and the child of unmarried parents were a vulnerable group who were affected by the discrimination. They were stripped of the rights that married fathers had to register children in their own name as those rights were made conditional and dependent on their relationship with the mother. That was a barrier to their full participation as parents and perpetuated gendered narratives about men’s caregiving. So too, the children of unmarried parents were a vulnerable group who were also affected by the discrimination. It was a primordial need for some parents to want to name their child and register their birth and that should be a right for both biological parents.
  13. Section 10 of the Act unfairly discriminated against unmarried fathers on the basis of their marital status. The parents could be in a permanent life partnership or some other form of bond not within the traditional marital structure. Because of the different approach to the traditional concept of marriage, whether in the form of a permanent life relationship or other forms of relationships, it was the unmarried father who had to be subjected to the indignity of having his child registered as being born out of wedlock. The import of section 10 of the Act was that the unmarried father, who had shown the necessary commitment to the child by wanting to possibly register the child with his surname, was discriminated against. Surely, there had to be many unmarried fathers who, like the unmarried father in the case, committed to the notification and registration of their children in their surnames, which reinforced their commitment as fathers.
  14. Discrimination based on sex and gender had often been said to overlap with discrimination based on marital status. Section 9(3) of the Constitution provided that the State could not discriminate directly or indirectly on the grounds of gender or marital status, and that was deemed unfair unless the violation of the fathers’ right to equality could be justified in terms of section 36 of the Constitution.
  15. Section 10 of the Act constituted unfair discrimination against unmarried fathers on the basis of sex, gender and marital status. Furthermore, that discrimination could not be justified when considering the egregious impact, it had on:
    1. an unmarried father’s dignity;
    2. the manner in which it compromised his relationship with his newly born child; and
    3. the way it entrenched sexist and gendered stereotypes about the parental role of fathers vis- à- vis mothers.
  16. Human dignity was not just a founding value that informed the society sought to be created under the new constitutional order but also a justiciable and enforceable right. Section 10 of the Constitution provided that everyone had inherent dignity and the right to have their dignity respected and protected. Everyone, irrespective of his or her marital status or status at birth, was a bearer of that right by virtue of being a human being. Recognising a right to dignity was an acknowledgement of the intrinsic worth of human beings: human beings were entitled to be treated as worthy of respect and concern. That right therefore was the foundation of many of the other rights that were specifically entrenched in chapter 3 of the Constitution.
  17. Section 10 of the Act constituted an infliction of an indignity that detracted from an unmarried father’s primordial and biological connection to his child. Dignity could not be a static concept as it had to be responsive to evolving attitudes, structures and beliefs. Yet, it was perspicuous that the core content of section 10 of the Act had not evolved in accordance with the constitutional imperative to uphold and promote dignity.
  18. Despite the fluidity of the concept of dignity, there was a core content which embraced the humanity and intrinsic worth of every human being. In the instant case, it was the unmarried father and his child who were constitutionally entitled to that, and that entitlement had to be protected by the State. The retention of section 10 of the Act would also undermine the unmarried father’s right to dignity. It would imply that he was not entitled to be treated as worthy of registering the birth of his child with his surname in the mother’s absence merely because he and the child’s mother were not married.
  19. A society based on ubuntu placed strong emphasis on family obligations. It obliged family members to help one another. That was particularly apt in the instant case. If an unmarried father could not even carry out the obligation to register his child and obtain a birth certificate in his surname, then that was a form of intolerable humiliation.
  20. The application of the right to dignity embraced and stood alongside the value of ubuntu. A basic application of the principle of ubuntu showed that, in the operation of section 10, the unmarried father and his child were not only deprived of their dignity, but also of ubuntu. Undoubtedly, section 10 was an injury to an unmarried father’s dignity, and perpetuated the societal stigma attached to unmarried couples and their children. It deemed his bond with his child as less worthy, merely on account of his marital status. Furthermore, in doing so, it demeaned that particular class of individuals (unmarried fathers and their children). The impugned provision was clearly inconsistent with the fundamental constitutional right to human dignity, and the value of ubuntu which that right embraced.
  21. An analysis of the word illegitimate meant not allowed by law or rules. Whilst the Act no longer used the term illegitimate child that was implied by the reference to so-called children born out of wedlock which continued to perpetuate the common law distinction between so-called legitimate and illegitimate children.
  22. The reference was a stark reminder that the nation was grappling with outmoded legal terminology which went to the core of dignity and equality, not only for the child but also the unmarried father, and indeed the unmarried mother as well. The use of the expression born out of wedlock to describe a child undoubtedly injured their dignity and implied that they were not worthy of equal respect and concern. The continued distinction between children born within or out of wedlock, which the impugned law conveyed, stigmatised the latter category of children. A separate process for the conferral of a father’s surname during the birth registration process for children born out of wedlock remained contradictory to the rights of the child as embedded in the Bill of Rights and contradicted the paramountcy principle.
  23. Children born to parents outside the marital bond were blameless, yet the retention of section 10 of the Act served to harm children born outside of wedlock. The status of being born out of wedlock, in effect, penalised the child and the unmarried father, and of course the mother too. The differential treatment of children born out of wedlock was invidious and unconstitutional. That differential treatment could not be justified.
  24. Whilst society could express its condemnation of irresponsible liaisons outside the bonds of marriage, visiting that condemnation on an infant, through the application of the law, was illogical and unjust. The court had warned against punishing children for the sins of their parents; rather, children had to be regarded as autonomous right-bearers and not mere extensions of their parents. Moreover, imposing undue burdens on the child born out of wedlock was contrary to the basic concept of the system that legal burdens should be imposed on relationships between individuals. Obviously, no child was responsible for her birth and penalising the child was an ineffectual, as well as an unjust way of forcing parents to comply with stereotypical norms of the supremacy of the marital family.
  25. Section 10 of the Act unfairly discriminated on the ground of social origin. In that context, social origin referred to an amalgam of intersecting factors related to a person’s class or social position in society. Some commentators had noted the intersectional nature of social origin-based discrimination and how it often overlapped with discrimination against groups who were already vulnerable due to their race, ethnicity, nationality, and so on. The observation was pertinent on those facts as the applicant had demonstrated that section 10 of the Act had a disproportionate impact on children from homes who could not litigate in the DRC in order to obtain the necessary marriage certificate in order to comply with the Act. In addition, it was no coincidence that on those facts, section 10 had an impact on a child whose mother was a foreign national and who was unable to register their birth on her own for that reason. Thus, the intersectional nature of social origin-based discrimination was evident in the matter.
  26. The section was manifestly inconsistent with the best interests of the child as well as her rights to dignity and equality and her right to a name and nationality from birth. Historically, children born out of wedlock had been discriminated against under the law including in the law of testation such as the denial of an inheritance. Social attitudes had also historically led to active prejudice towards children born out of wedlock. That could have been ameliorated somewhat in modern times but still a child born out of wedlock remained outside of the stereotypical nuclear family where a married couple and their dependent children were regarded as a basic social unit. Those social attitudes were unfortunate and keeping the category of separate registration for children born out of wedlock on the statute book further reinforced those perceptions.
  27. Their vulnerability also went to the family affiliation where the child was that of one parent as opposed to married parents. Children could see themselves as being of inferior status as they did not have a proper family, and that could cause stresses such as social isolation and social stigma.
  28. Section 9 could be read to mean that the notice and registration of the surname could be given by either parent regardless of the parents’ marital status and without any prescription in terms of the manner of selection of the surname as provided for in section 9(2) of the Act. Therefore, section 9 could have been interpreted to be constitutionally compliant by taking into account the role of the unmarried father and the best interests of the child.However, section 10 of the Act was inconsistent with the Constitution and to that extent invalid.
  29. The finding of unconstitutionality meant that the court ought to have declared section 10 invalid to the extent that it limited the right of unmarried fathers to give notice of the birth of their child in their surname thereby unfairly discriminating against children born to unmarried parents. For that reason, section 10 was declared unconstitutional. In those circumstances, severance was the appropriate remedy and there was no need to read any words into section 10. In addition, however, the proviso in section 9(2) of the Act which stated that the provision was subject to the provisions of section 10 had to consequently also be severed, but the rest of section 9 remained intact.

Mogoeng CJ & J; Mathopo AJ (Dissenting Opinion)

  1. An unmarried father was not precluded from registering his child. On the contrary, he could even register the child under his surname or under a double barrelled surname. The only difference was that the impugned provisions prescribed that that be conditional upon compliance with certain requirements. The central or dominant feature of those differential dispensations was that unlike in the case of a married man, the mother of the child had to signify approval. The contention was that because they were both fathers they should without more enjoy the exact same entitlements. That therefore was a demand for unbridled or absolute equality or identical treatment in all circumstances purely on the basis that they were after all men and fathers. Failure to adopt that approach did, in the view of the applicant constitute unfair discrimination on the basis of marital status, sex and gender and was detrimental to the best interests of a child.
  2. The constitutionality of sections 9 and 10 of the Act really had no direct bearing on the experience of the 3rd respondent, as an unmarried father, and the facts that actually applied to their situation. The birth of his child could not be registered only because the visa of her mother, the 4th respondent who was a citizen of the Democratic Republic of Congo, had expired. She therefore did not have a valid one required, not by sections 9 or 10 but, by the Regulations. Hence the inability to register the birth of the child. In any event, that matter was appropriately dealt with and disposed of by the courts below. Additionally, the mother of the child was present and presumably had no objection to the registration of the birth of their daughter by her biological father and under his surname. Evidently, her section 10 of the Act consent was readily available.
  3. There was nothing about those provisions that stood in the way of the remedy sought by those unmarried parents. In other words, the concerns being raised about the paramountcy of the best interests of the child, and discrimination against an unmarried father, on whatever basis, did not arise. It was just that the applicant chose to pursue a case that was somewhat unrelated to the rights and interests of the child, of her father and mother that were directly implicated in that case. Also, issues relating to statelessness or the right to a name and a nationality did not arise. For, those were not issues that were inextricably connected to a father. Birth registration by a child’s mother did release those benefits or entitlements to a child. In sum, one of the challenges about the case was therefore that hypotheticals were being relied on to seek to address matters of profound constitutional significance.
  4. The application should have been dismissed so that the constitutionality of the impugned sections could be addressed under more appropriate circumstances in the future. However, the issues were fully ventilated and the Department of Home Affairs was also supportive of the immediate disposition of the matter.and it was in the interests of justice in the circumstances that those issues be resolved once and for all.
  5. The differentiation between married and unmarried fathers was not about stereotyping women as those who should hav borne the primary or sole responsibility for raising children, but about confronting the practical realities that unmarried South African mothers and children had to contend with most of the time. It was also about giving recognition to and celebrating a married father’s legal or covenantal obligations to help raise and care for the child working together with the mother.
  6. It could not be seriously disputed that it was in the best interests of a child to be practically and more meaningfully linked to a loving, caring, supportive and responsible father, not just any man who happened to have fathered him or her. All things considered, the mother of that child was best-suited to tell whether the unmarried man claiming to be the father was in fact the father and a responsible one. Hence the need for her consent. And that was why abusive fathers got divorced and custody was then awarded to a caring mother.
  7. It was not a case of needless, and in reality, unfair discrimination on the basis of marital status, sex or gender. The impugned provisions were predicated on the need to give practical expression to the best interests of a child and their paramount importance. They were also grounded in the lived experiences of South Africans relating to some men who were happy to claim and give their surnames to children without any regard for a concomitant duty of care for them. A child’s mother had to therefore necessarily be asked to say:
    1. Whether the man claiming to be the father was indeed the father; and
    2. even if he was, whether he was the kind that would help advance the best interests of the child and give expression to the paramountcy of those interests or one whose somewhat formalised association with the child would be prejudicial to the child’s best interests.
  8. A reading of sections 9 and 10 of the Act in a way that kept them within constitutional bounds did not expose a child to known or foreseeable risks. It protected and advanced the best interests of a child and recognised the paramountcy of those interests. Sections 9 and 10 of the Act should thus be left intact. It would then be for Parliament, working with the Department of Home Affairs, to, if so advised, consider making more appropriate provision for a situation where:
    1. a mother was for some reason not available to register the birth of her child;
    2. the mother was available but undocumented or unable to register the child for whatever reason;
    3. the mother was available but was inexplicably or unreasonably withholding her consent or refusing to register the child; and
    4. any other practical challenge that existed that deserved legislative intervention.
  9. The proposed declaration of section 10 of the Act as constitutionally invalid, the deletion of “subject to the provisions of section 10” in section 9(2) and the order were loaded with serious risks to the best interests of a child. The High Court had correctly cleared the impediment to the registration of the birth of a child that was created by the Regulations. Happily, the 4th and 3rd respondents had presumably been able to or would then be able to register the birth of their daughter unimpeded by the relevant provisions of the Regulations. Regarding sections 9 and 10 of the Act, the declaration of unconstitutionality proposed for confirmation by any of the courts below would not be confirmed. The orders would be set aside with no order as to costs.

Application partly allowed; the 1st respondent had to pay the costs of the applicant in the Constitutional Court, including the costs of two counsel.

Orders:

  1. The declaration of constitutional invalidity of section 10 of the Births and Deaths Registration Act 51 of 1992 (Act) by the Full Court of the High Court of South Africa, Eastern Cape Division, Grahamstown, was confirmed in the terms set out in paragraphs a) and b):
    1. It was declared that section 10 of the Act was invalid in its entirety and consequently severed from the Act.
    2. The proviso in section 9(2) of the Act stating that the provision was “subject to the provisions of section 10” wais severed from section 9(2) by reason of the declaration of constitutional invalidity of section 10.
  2. The declaration of constitutional invalidity referred to in paragraphs (a) and (b) took effect from the date of the order.

Relevance to Kenya’s legal system

Article 53 (1) (a) of the Constitution of Kenya, 2010 provides that every child has the right to a name and nationality from birth. Sub-article (2) goes on to provide that a child’s best interests are of paramount importance in every matter concerning the child.

Regionally, The African Charter on the Rights and Welfare of the Child, 1990 provides in article 3 on non-discrimination that every child shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in this Charter irrespective of the child’s or his/her parents’ or legal guardians’ race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status.

Article 4 (1) provides that in all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration. Article 6 (1) provides that every child shall have the right from his birth to a name.

Convention on the Rights of the Child, 1989 provides in article 2 that States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

In addition, States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.

Article 7 (1) provides that the child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.

In Kenya, there has been a similar case to the South African one where the requirement of consent of the father before entering his name in the certificate of birth of a child born out of wedlock under section 12 of the of the Registration of Births and Deaths Act was found to be discriminatory to the child and the mother. This was held in L.N.W v Attorney General & 3 others [2016] eKLR. The court further held that Section 12 of the Registration of Births and Deaths Act which required that the name of the father of a child born outside marriage should be entered in the register of births only with the consent of the father was unconstitutional and in violation of articles 27, 28 and 53 of the Constitution. In addition its effect of imposing an unfair burden on women, the mothers of children born outside marriage, was to that extent discriminatory on the basis of sex.

The court also held that parental responsibility for children, whether born within or outside marriage, was the responsibility of both the father and the mother. Where the identity of the father was not known, or his particulars were not included in the birth register or the child’s birth certificate, then a single mother had the burden of pursuing the father for support, and having first to establish the question of his paternity. However, with legislation that provided for inclusion of the particulars of fathers in the birth certificates of all children, whether born within or outside marriage, the burden imposed on women was lessened, and it was possible for men to take up their responsibilities with respect to children sired outside marriage.

The court further held that the law ought to demand that fathers of children born outside marriage step up to the plate and take parental responsibility for their children. That should begin with the provisions in respect of registration of the birth of such children. A situation in which such children and their mothers are discriminated against on the basis of the law could not be allowed to continue under a transformative constitution.

On constitutionality of legislation, the court quoted R v Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 where it was stated that “both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact, are clearly linked, if not indivisible. Intended and achieved effects have been looked to for guidance in assessing the legislation’s object and thus the validity.”

The case of Coalition for Reforms & Democracy & Others v Republic of Kenya & 10 Others, Petition No 628 of 2014 where it was held that, “However, we bear in mind that the Constitution itself qualifies this presumption with respect to statutes which limit or are intended to limit fundamental rights and freedoms. Under the provisions of Article 24 …. there can be no presumption of constitutionality with respect to legislation that limits fundamental rights: it must meet the criteria set in the said Article.”

The case of Zak and Another v The Attorney General and Another alsoheld that parental responsibility for children, whether born within or outside marriage, is the responsibility of both the father and the mother. Where the identity of the father is not known, or his particulars are not included in the birth register or the child’s birth certificate, then a single mother has the burden of pursuing the father for support, and having first to establish the question of his paternity.

From the above it is clear that the best interests of a child are paramount and every child has a right to a name at birth and is entitled to equal parental responsibility from both the mother and father, whether married or not. The South African case thus continues to enrich the jurisprudence that Kenya has also evidenced on the rights of children.

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