RM v Attorney-General

• Jurisdiction: Kenya
• Date: 01 December 2006
• Court: High Court (Kenya)

Kenya, High Court

(Nyamu and Ibrahim JJ)

RM (A Minor, through Next Friend JK)

and

Attorney-General1

Relationship of international law and municipal law — Treaties — Ratification without reservation of international instrument — Incorporation in domestic legislation — Whether States obliged to mirror provisions of international instruments in domestic legislation — Margin of appreciation — Constitution of Kenya — Conflict between international law and domestic law — Bangalore Principles, 1989 — Supremacy of Constitution where clear and unambiguous — Inability of court to expand provisions of Constitution where clear and unambiguous

Human rights — Discrimination — Grounds for non-discrimination in international and domestic law — Convention on the Rights of the Child, 1989 — African Charter on the Rights and Welfare of the Child, 1990 — Constitution of Kenya — Children Act 2001 of Kenya, Section 24(3) — Parental responsibility — Whether part of jus cogens— Parental responsibility for children born out of wedlock — Whether non-discrimination provisions under the Constitution and the Children Act 2001 of Kenya inconsistent — Whether non-discrimination provisions under Constitution and international obligations inconsistent — Whether vesting parental responsibility in mother in first instance discriminatory — Principle of equality and non-discrimination — Margin of appreciation — Whether distinction for legitimate purpose — Whether distinction reasonable in light of legitimate aim — The law of Kenya

Summary: The facts:—The application was brought on behalf of RM, a minor, by her mother JK, claiming that Section 24(3) of the Children Act No 8 of 2001 of Kenya (‘the Children Act’), which bestowed parental responsibility

for children born out of wedlock on the mother, should be struck out because it was discriminatory, inconsistent with the Constitution of Kenya and various international obligations and failed to take into account the best interests of the child.

RM had been born out of wedlock to parents who were cohabiting. The father, who had allegedly named RM and paid the hospital expenses when she was born, left a few months after the birth and, within a year, had effectively disappeared. RM was left without any paternal support or provision for her upkeep.

It was argued that placing parental responsibility only on the mother in the first instance put RM in a disadvantaged position compared to children born within wedlock and amounted to discrimination on the grounds of social origin, birth or other status, which was prohibited by the Convention on the Rights of the Child, 1989 (‘the CRC’)2 and the African Charter on the Rights and Welfare of the Child, 1990 (‘the African Children's Charter’).3 It was argued that since the State had not lodged any reservations at the time it ratified the CRC, the Children Act should have implemented the CRC provisions without reservation. Further, Section 24(3) actually imposed discriminatory statutory criteria that were both inconsistent with Section 82(1) and (2) of the Constitution and in breach of customary international law.

Held:—The application was dismissed. Section 24(3) and, by extension, Section 25 of the Children Act were not discriminatory or unconstitutional and did not offend the principle of equality and non-discrimination either by themselves or in their effect.

(1) The Constitution was the supreme law of Kenya and its provisions under Section 82 were clear and unambiguous. As such, and in accordance with the Bangalore Principles, the provisions of the Constitution took precedence over the provisions of international agreements. Expanding the anti-discrimination categories in Section 82 of the Constitution to accord with those of the CRC or African Children's Charter would be ultra vires and a usurpation of the legislative function (pp. 316–17, 328).

(2) In enacting legislation to implement the provisions of international obligations, States had a margin of appreciation that enabled them to take account of their own local laws, traditions and circumstances. Parliament was under no obligation to enact the exact provisions of the CRC or African Children's Charter (pp. 327–9).

(3) Article 2 of the Universal Declaration of Human Rights, 1948, entitled everyone to protection from discrimination. However, not all distinctions amounted to discrimination and there was an accepted principle of international law that differentiation based on reasonable and objective criteria did not amount to prohibited discrimination. Distinctions made between people

were justified provided they were reasonable and imposed for objective and legitimate purposes (pp. 323–9).

(4) The aim of Section 24(3) was both legitimate and proportionate. Parental responsibility was the cornerstone of protecting the interests of the child and the aim of the provision was to ensure parental responsibility in all possible relationships and without delay. Vesting parental responsibility in the unmarried mother in the first instance was in the best interests of the child (pp. 326–9).

(5) The rights at issue were not part of jus cogens. The right to life was closest in classification but since the provisions at issue were designed to protect and promote the rights of the child, they could not be said to threaten the right to life (pp. 314–16).

The following is the text of the judgment of the Court:

This is an application brought by way of an Originating Summons dated and filed on 12 August 2002. It has been brought by RM (a minor through next friend JK her mother) and CRADLE, a Non-Governmental Children['s] Foundation as the 1st Interested Party. The 2nd Interested Party is COVAW (Coalition on Violence Against Women). The 3rd Interested Party is FIDA (Federation of Women Lawyers Kenya). The application was brought for the determination of the following questions.

• 1. Is Section 24(3) of the Children Act an abrogation of the plaintiff's human right; to wit, protection from discrimination to the extent that it negates the Constitution, international conventions and charters of which Kenya is a signatory, in particular, Articles 2 and 3 of the Convention on the Rights of the Child and Articles 2 and 3 of the African Charter on the Rights and Welfare of the Child by expressly discriminating against children born out of wedlock and failing to take into account the best interest of the child?

• 2. Is Section 24(3) of the Children Act either of itself or in its effect discriminatory to the extent that it expressly or constructively prescribes that a father of a child who is neither married to nor has subsequently married the child's [mother] bears no parental responsibility in relation to that child?

• 3. Is Section 24(3) of the Children Act inconsistent with Section 82(2) of the Constitution of Kenya concerning a child whose parents were not married to each other at the time of the child's birth to the extent that it permits a father of such child to discharge parental responsibility to the child by virtue of its provision?

• 4. Has the applicant been treated in a discriminatory manner by [her] father who, acting by virtue of Section 24(3) of the Children Act, has refused to assume parental responsibility on her behalf?

• 5. Does Section 24(3) of the Children Act impose statutory criteria which discriminate [against] children whose parents were not married to each other at the time of their birth as against all other children; which criteria are inconsistent with Section 82(1) and (2) of the Constitution of Kenya making the same therefore null and void?

• 6. Who shall pay costs of this summons?

The factual background is that RM was born on 16 September 2000 through a relationship between the mother and another man [sic]. It is alleged that the father worked with a local company as a mechanic. At the time of birth the mother depones that she was cohabiting both before the date of birth and up to 3 January 2001 with the alleged father who duly paid hospital expenses at the hospital where RM was born. On 3 January 2001 the alleged father disappeared or avoided the mother completely in April 2001.

On 16 September 2000 the mother depones that the alleged father came to the matrimonial home [sic] and named the child after his mother (RM) and shaved her head after one week as per his tribe's customary law, i.e. Kisii.

She depones that he has failed to give any parental support to both the mother and the child and that both entirely depend on good Samaritans for their upkeep.

She laments that the law does not place any parental responsibility on the plaintiff's father since she is not married and had she married him the plaintiff's father would have had parental responsibility towards the plaintiff just like the mother.

She finally depones that she has been advised that the law, i.e. s 24(3) of the Children Act, is discriminatory as it puts the plaintiff [in] a disadvantaged position vis-à-vis other children whose fathers have married or subsequently married their mothers. Such children do not therefore have to contend with the question of who will take responsibility on their behalf. And therefore the plaintiff should be accorded equal treatment with those children whose parents are married or have subsequently married by placing parental responsibility on both the father and mother.

Counsel for all the parties including Interested Parties hereinafter called IPs have since filed affidavits and have also filed and relied on written skeleton arguments with lists of authorities which we have duly considered in preparing this judgment

ANALYSIS

According to the format of the Originating Summons, s 82 of the Constitution of Kenya has been mentioned in prayers 3 and 5 of the Originating Summons and because the Constitution is the supreme law of the land, we consider it important to start with it by setting out relevant parts in extenso. Section 82(1), (2), (3), (4) and (6) reads:

We also consider it important...