The principle of non-discrimination is well established all over the world. It is to be found in most international conventions as well as in many countries municipal laws. Kenya is no exception and the principle is found in Kenya’s constitution as well as in the Children Act. Kenya furthermore, has ratified several of the international conventions containing the principle. Despite this, the principle is not always adhered to in Kenya and discrimination does exist in the country. One group that is being discriminated against is children born out of wedlock. When it comes to the issue of parental responsibility, these children get less support than children born by married parents.
What is important to note in this regard is that this distinction between children born out of wedlock and children born by married parents, is actually provided for in Kenya’s national laws. According to the Children’s Act, the issue of parental responsibility, i.e. which of the parents has responsibility for the child, is determined by whether or not the parents were married at the time of the child’s birth. In cases where the parents were married, both the mother and the father shall have parental responsibility. Neither the father nor the mother shall have a superior right or claim against the other in the exercise of this responsibility. However, in cases where the parents were not married at the time of the child’s birth and have subsequently not married, the issue of responsibility towards the child is different. In these cases, the mother is the one with full parental responsibility whereas the father bears no responsibility at all. The father can acquire responsibility, however, this is optional and more importantly, it is optional to the father, it is nothing neither the mother nor the child is able to enforce on the father.