The complexities of Kaluma's 50-50 parental care

In 2018, Marisela Nyaboke and her boyfriend went separate ways when she was two weeks pregnant. Her then boyfriend promised to support the child.

In her mind, she assumed he could take time off teaching to look after the baby soon after she delivered. That remained just a dream.

For almost three years now, Ms Nyaboke has raised her son single-handedly even though the father, a lecturer at a local university, has never stopped sending her texts with the usual empty promise “I will always be there for my child.”

“So when I read about Kaluma’s (Peter Kaluma, Homa Bay Town MP) proposal, I laughed hard,” she says, noting that he stopped asking the father of her son for support when she realised he was a “waste of my time and energy”.

“Even if I told him the child was unwell, he would never take even a day off to see him. Many times, I requested him to babysit so I could attend job interviews but he would ignore yet getting a job could be for the best interest of his son,” she says.

“So even if the Bill becomes law today, it won’t change anything. You cannot force a woman or a man to be a parent to a child if they are not ready to be one. Raising a child is not just about money. It takes your presence emotionally and physically.”

Well, if the equal parental responsibility advocated for by Mr Kaluma is finally legalised then perhaps, Ms Nyaboke’s situation could change. In his Children (Amendment) Bill, 2020, Homa Bay MP wants the mother and father of a child whether married or not, to carry equal burden in raising the child.

Child's property

The Children Act 2001 defines parental responsibilities as all the duties, rights, powers, responsibilities and authority which, by law, a parent of a child has in relation to the child and child's property in a manner consistent with the evolving capacities of the child.

The Act also provides that parents, whether in a relationship or not, must make necessary financial contributions to the care, upbringing and development of their children.

But how did the proposed Bill came to be? Mr Kaluma’s child support cases seem to have stung him so bad to set him on a “revenge mission”. Two women are literally hanging on his pockets.

In 2013, a woman sued Mr Kaluma for Sh66,100 in monthly upkeep for a child he sired with her when they were in a relationship between 2001 and 2002.

This preceded another suit in April 2014, in which the then 31-year-old woman demanded for Sh1.6 million from him. This is the money she had spent to take care of their daughter during the time he absconded his parental responsibility. Mr Kaluma, however, filed an affidavit claiming he was broke due to loans and mortgage deductions. He had provided his pay slip showing a nil salary for the month of January.

Children’s Act

In 2015, he decided to use his legislative power to introduce amendments to the Children’s Act, intent to eliminate possibility of a father catering for the child and the mother, to whom he is not married to. Instead, they share the responsibility of taking care of the child equally.

But the MPs read mischief in his Bill and voted against it. He also had it rough during the debating of the Bill.

“We are not in the House to create laws to fix our domestic problems,” Aden Duale, the then Majority Leader said during the debate.

Outside Parliament, fellow legislators were on his neck. Parliamentary Caucus on Human Rights, Kenya Women Parliamentary Association (Kewopa) and Caucus 47, equally criticised his Bill.

But Mr Kaluma is not in any way willing to give up. He reintroduced the Bill and it has been endorsed by Labour and Social Welfare committee.

Equal parental responsibility could come with a baggage of its own challenges and in most cases disadvantages the women. For it to become a reality, the mother and father must be willing to split the responsibilities right in the middle. That is, if the mother is to cook for the child, the father must then clean his clothes. But in reality, women are already spending 11.1 hours in unpaid care unlike 2.9 hours for the men.

Economic activities

In Australia, where the Family Law Amendment (Shared Parental Responsibility) Act (2006) warrants equal parental responsibility, women end up spending more time with the children than fathers. This is because the men prefer to invest their time in economic activities than staying with their children.

According to KPMG Australia, nearly 60 per cent of employed mothers with a child under the age of six work part time compared with less than eight percent of the employed fathers.

Here in Kenya, the situation would not be any different should the Bill become law.

“It is even in the Bible that a woman should take care of the child while the father goes away to make money,” argues Eric Onsano, a teacher.

“I’d rather be sending her money than be the one spending a whole night changing diapers,” he adds.

Even so, Mr Kaluma’s law may not apply uniformly as he wishes.

Fida Kenya senior legal counsel Ilham Hisham says any aggrieved parent can challenge its application.

“It is something that is debatable (equal parental responsibilities) and it can always be taken to court… how you expect a 50-50 financial contribution in the instances where a woman has no income?” she asks.

Maendeleo Ya Wanawake Organisation national chairperson Rahab Muiu, notes the need for extensive research on equal parental responsibilities to inform development of evidence based laws.

“While it is important to have both parents present in the life of a child, it is important that we do a lot of research on this issue to ensure the laws developed are protective of the rights of children,” she says.

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