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For a long time, children born out of wedlock have faced discrimination and rejection in many societies, including Kenya. These children are often denied access to their paternal homes and are not given the right to inherit their biological father’s wealth. In Kenya, these children are often derogatorily referred to as “Mwana Haramu,” which translates to “illegitimate child.”
The stigma surrounding children born out of wedlock has led many mothers to hide the identity of their children’s fathers, out of fear of rejection and discrimination. This has created a cycle of secrecy and shame that perpetuates the marginalization of these children.
The denial of inheritance rights to children born out of wedlock is a violation of their basic human rights. Every child has the right to know and be cared for by both of their parents, regardless of the circumstances of their birth. Denying these children access to their paternal homes and inheritance rights only serves to further marginalize them and perpetuate the cycle of poverty and discrimination.
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On Thursday, the Senate received the Law of Succession (Amendment) Bill, 2023, which was prepared by nominated United Democratic Alliance (UDA) senator Veronica Maina. The Bill aims to amend the Law of Succession Act to ensure that property is distributed equally to all children of a deceased male parent.
Senator Maina argues that the current Act discriminates against children born out of wedlock who are not officially recognized by the father while he is alive. The Bill seeks to address this issue by requiring fathers, popularly known as ‘Deadbeat Dads,’ to share property equally among all their children.
According to the Law of Succession Act, a child belonging to a male parent is defined as any child whom he has expressly recognized or accepted as his own, or for whom he has voluntarily assumed permanent responsibility. However, the Kenyan Courts have found this definition to be discriminatory against adopted children and those who have not been expressly recognized by their father.
If the Bill is passed by Parliament, the Act will comply with the Kenyan Constitution, which provides for equal care, protection, and responsibility towards children by both parents regardless of their marital status. The new amendment will also recognize adopted children and children conceived during the lifetime of a deceased person but born after their death.
Furthermore, the Bill seeks to protect children of the deceased whose mother was not the wife of the deceased by ensuring that they are considered as additional units and receive their share of the estate at the time of succession. Additionally, widows and widowers will lose their life interest in their deceased spouse’s property if they choose to remarry, as opposed to only widows losing this interest in the current Act.
Another significant amendment proposed by the Bill is the repeal of Section 39, which gives fathers priority in inheriting the property of their deceased child. Under the new amendment, both parents of the deceased child will receive an equal share of the estate.
In conclusion, the Law of Succession (Amendment) Bill, 2023, introduced by Senator Veronica Maina, aims to address the discriminatory practices in the current Act and ensure that property is distributed equally among all children of a deceased male parent. If passed, the Bill will bring the Act in line with the Kenyan Constitution and promote fairness and equality in matters of succession.
