RM v. Attorney General

RM’s mother was living with, but not married to, RM’s father at the time of her birth. Although RM’s father paid hospital expenses for her birth, shortly thereafter, RM’s father ceased contact with RM’s mother and provided no parental support. Under section 24(3) of the Children Act (the “Act”), only parents that were married had joint parental responsibilities. If the parents were not married, the mother had parental responsibility “in the first instance.” There were limited conditions when the father could assume parental responsibilities, including if the parents were to get married after the birth, if the father were to live with the mother for 12 months, if the father requested responsibility, if the father acknowledged the child, or if both parents agree to joint responsibility. None of these situations applied to RM.

RM brought an application to the High Court of Kenya asserting that section 24(3) of the Act was discriminatory because children born out of wedlock were treated differently from children born to married parents as the former did not automatically receive support from their fathers. The High Court was asked to determine whether section 24(3) of the Act discriminated against children born out of wedlock and thus whether the Act violated the Constitution, the Convention on the Rights of the Child, and the African Charter on the Rights and Welfare of the Child.

The Court rejected the petitioners’ argument that personal law (which was exempted from the constitutional non-discrimination guarantee) should not be construed to cover issues of parental responsibility and that discrimination against children born out of wedlock violated jus cogens. Rather, the Court found that the definition of personal law was broad enough to capture “those transaction of his daily life which affect [a person] most closely in a personal sense” and that just cogens had not yet embraced parental responsibility and the rights associated with it.

The Court held that because martial status was not included as one of the enumerated categories of discrimination listed in section 82 of the Constitution, RM could not claim that her parents’ marital status discriminated against her. While section 5 of the Act itself included both birth and status as forms of discrimination, the Court held that an act of Parliament could not add to the Constitution and thus had no effect. The Court concluded that it would be “unacceptable judicial activism” to add marital status to the list of impermissible grounds for discrimination when Parliament had not changed the Constitution.

The Court held that the Act itself was not unconstitutional because it did not violate anti-discrimination and equal protection guarantees. Equal protection did not forbid legislation from differentiating between situations so long as the difference was 1) not artificial, but real and substantial and 2) had a rational relation to an act’s legitimate aim. In this case, the Court found that it was permissible to differentiate between married and unmarried parents because of the unknown status of the father in the latter situations. In the Court’s view, the Act had a legitimate aim in ensuring that there was no gap in parental responsibility. The Court anticipated that the process of identifying the father of unmarried parents could take time and that it was in the best interest of the child to give initial responsibility to the mother. The Court noted that this Act did not prevent RM’s mother from pursuing a paternity claim in court.

The Court held that it could not give effect to provisions in international treaties and conventions that were contrary to the Constitution. The Court acknowledged that it had a “critical role” in harmonizing civil and political rights with constitutional principles and that some international conventions included marital status as a category of discrimination. However, because the Kenyan Constitution was “clear and inconsistent” with those documents, the Court was obliged to defer to national law. Moreover, the “margin of appreciation” doctrine provided Kenya with some leeway in applying international provisions. The Court found that the Act’s distinction was not discriminatory with respect to the situation in Kenya.

The suit was dismissed without apportioning costs.

“Equal protection of laws means subjection to equal laws applying to all in the same circumstances. In the circumstances presented to us, the child born within wedlock has the immediate support of the two parents. In the case of the child born out of wedlock there is only one parent available in the first instance. The difference in terms of the two otherwise equal situations arises because the status of the father in the latter case is not immediately ascertainable and the law goes on to provide for the process of ascertainment and to allow the sharing of responsibility’ upon ascertainment of status or acceptance by the father. The law does not prevent or frustrate paternity or legitimacy suits. They are contemplated by the section or other applicable laws. The question is, does the right of equal protection under the Constitution, prevent the legislature from legislating differently in the two situations? The answer in our view is no. The principle of equal protection of the laws does, not prevent the legislature or the state from adjusting its legislation to differences in situations or forbid classification in that connection, but it does require that the classification be not arbitrary, but based on a ‘real and substantial difference, having a reasonable relation to the subject or aim of the particular legislation’.” Paragraph 53.

“The intelligible differentiation in the case before us is the uncertain status of the father in the first instance. The differentiation is not arbitrary because it has a nexus to attachment of parental responsibility and it recognises that the process of ascertainment of the status will take time. Surely there is a substantial distinction between the two situations and the law has handled the distinction in a reasonable manner and with the object of parental responsibility and the objects of the Act in view.” Paragraph 55.

“[W]e are acutely aware that the role of the Court in determining the values and principles of our Constitution is vast in that in the hitherto neglected filed of economic, social and cultural rights the courts have the critical role of harmonising these rights with the civil and political rights.” Paragraph 70.

“It is clear to the court that what s 24 and 25 are seeking to achieve is to have the parental responsibility shared in the case of the married couples or where there is a consensual parental agreement or the responsibility split between individuals if there is no marriage and also to locate parental responsibility permanently where an unmarried father, has had a 12 months history of giving maintenance to the child. In cases outside these situations the law initially locates the parental responsibility on the mother of the child because firstly there cannot be a gap in parental responsibility in the first instance and the best interests of the child is for the identified parent to take up the responsibility. The law assumes that the process of identifying the father outside marriage is likely to take time eg paternity or legitimacy suits are likely to take time where instituted, yet the needs of the child cannot be held in abeyance even for a moment” Paragraph 72