This archive report was first published on 11 July 2019.
On July 11, 2019, a reader asked for legal advice on whether they could use a father's name to acquire a birth certificate without their ID, assuming the father had not given it.
Eric Mukoya, the Executive Director of the Legal Resources Foundation Trust, responded to the question, citing Article 53 of the Constitution of Kenya, which bestows equal parental responsibility on both parents.
He explained that parental responsibility is automatic and self-activating on both parents, whether married or not, and includes the right of a child to a name. Registration of a child infers recognition of parental responsibility.
According to Mukoya, both parents are required to give notice of birth to the relevant Registrar of Births in a prescribed form, which includes entering both the name of the father and the mother, regardless of their marital status.
However, Section 12 of the Registration of Births and Deaths Act, which predates the Constitution, has been declared unconstitutional on two separate occasions by the High Court. Until the Act is amended to conform to the Constitution, both parents must take parental responsibility for their children, which begins with registration of birth with the appropriate name.
Therefore, to answer the reader's question, the answer is yes, unmarried fathers can use their name to acquire a birth certificate, but both parents must take parental responsibility and register the birth with the appropriate name.
