The Court of Appeal’s rejection of a provision in the Islamic Sharia Law denying children born out of wedlock a share of their deceased father’s estate is a major triumph for justice.
Whether born in or out of wedlock, children should not be disadvantaged due to issues over which they had no control. Unless there is a paternity dispute, all the children of the same man are entitled to inherit his property.
Marital status is a mere cultural issue and, where the parental link is doubted, it can be resolved through, say, a DNA test. Indeed, even adopted children—who have no blood relations with the parent—are entitled to a share of the estate.
The Court of Appeal is quite right that there is nothing like “illegal” children. According to Justices Gatembu Kairu, Pauline Nyamweya and George Odunga, children’s rights must be clearly distinguished from marital issues.
To deny some children their rights on the basis of the alleged ‘sins’ of their parents is an irrational and painful discrimination as they did not commit them.
That aspect of Sharia Law that locks out children born out of wedlock is unjust. There is no rational justification for the creation of a distinction between children over their entitlement to their father’s estate.
Whether born in or out of wedlock, they share a father and should enjoy equal rights with their siblings as guaranteed by the Constitution.