Children and Women Lose Out on Maintenance

Date: January 1, 1970
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Women across the region are having hard time getting support from fathers for their children once the couple parts ways, especially if they were not married.

Take the Kenyan High Court judgement in a case brought on behalf of a six-year-old girl seeking maintenance from the father. Two male judges argued that unless the mother was married to the father of the child, the man was not legally bound to take care of the child’s material and emotional needs.
Kenya has high numbers of extra-marital births and female-headed households, yet the law works against women trying to claim maintenance payments from biological fathers. The judges in fact uncritically endorsed this unconstitutional act, painting a bleak future for thousands of women and children in similar predicaments, shielding thousands of men who have children out of wedlock from financially supporting their children.  
It seems that even in this age of universal progress towards achieving human rights for all worldwide, Kenyan men, backed up by laws, policies and practices that have little regard for gender equality, are quite reluctant to be responsible.
However, this mentality is not unique to Kenya. In South Africa, women battle every day for fathers of their children to pay for the upkeep of those children. Maintenance courts are full of women with horror stories of men who will use every trick available to them to evade providing for their children.
Recently the media has highlighted cases of public figures that have refused to acknowledge their fatherhood. The basis of their refusal is normally to contest the paternity. Men hardly ever contest the fact that they had a sexual relationship with the woman concerned.
Things are even worse if the woman does not conceive. For instance, in a ridiculous judgement some time back, a magistrate told a woman complainant that she could not prove that she had been cohabiting with a man simply because despite the relationship, she had never fallen pregnant!
What worries one in the Kenyan case is that even those men who have lived with both the mother and child for many years and supported them during that cohabitation, as a husband and a father, are indeed free to simply walk away one day and deny any blood relationship or social responsibility.
Moreover, they have the backing of the law and the courts. If the woman wishes to demand care and support from the man, it is her job to pursue paternity tests and prove that a relationship existed between her and the man.
The cost of the tests is prohibitive enough to be an obstacle and deterrent – and remember that the father can dispute the results ad infinitum, in the style of the recently reported case here in South Africa where a man is arguing that a 98% paternity result is inconclusive.
In fact, the only sure way for the woman to get the man to support the child is to prove that there was a marriage. It is almost a lose-lose situation for women and their children fathered out of wedlock.
If she can pursue the paternity test successfully, she can claim maintenance from the child’s father. Yet enforcement of the payment, in either case, is another issue altogether.
In many cultures in Southern Africa, women and their children are largely dependent on men for a livelihood. It is a violation of their rights as human beings to be denied the opportunity by the law to compel men to take care of them.
This is a widespread practice, especially in a socio-cultural context where polygamy is still practised. For the law to stipulate that it is the woman’s responsibility to prove that the man against whom she has brought a case is indeed the father of her child is to deny that woman the protection of the law. It is also to denigrate her dignity and worth, as a human being.
What more violence can men and the society visit on women than to deny them the rights to a livelihood? What violates women more than telling her that she has to prove that indeed she slept with a man and had a child with her, in open court?
And what about the child? What more violence can one do to a child than to say that the father is denying any relationship with her? Indeed, this irresponsibility on the part of men explains why African cities are full of street children. These abandoned children will never know the love of a father (and mother) mainly because their fathers are not ready to acknowledge them.
The impunity with which men in countries like Kenya and South Africa shirk their adult responsibilities should be a cause for serious worries by civil and human rights groups, and the society at large.
To pay for the maintenance of a child one has fathered is to acknowledge that child’s right to a decent life. It is also a statement to the public that one is ‘man enough’ to be responsible for his actions, both in the past and in the present.
Tom Odhiambo is a Researcher with the Wits Institute for Social and Economic Research. This article is part of the Gender Links Opinion and Commentary Service that provides fresh views on everyday news.

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