Rights of Non-Marital Children to Access of their Fathers with Lessons from South Africa and Kenya

Abstract

This dissertation critically examined the legal framework governing the access rights of non-marital children to their biological father in Zambia, while highlighting the persistent legal, social and cultural barriers that hinder the realization of these rights, Despite Zambia’s ratification of the international instruments such as the United Nations Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) , domestic law and practice continue to fall short in ensuring non-discriminatory access and parental involvement for children born out of wedlock. The study scrutinizes statutory provisions such as those in the Births and Deaths Registration Act and the Children’s Code Act how these Acts often subordinate the rights of non-marital fathers to marital consent, thereby undermining the child’s right to maintain meaningful relationships with both parents. While using a comparative legal analysis the dissertation draws on the experiences of South Africa and Kenya, two jurisdictions that have made significant changes in reforming their family law systems to reflect the evolving nature of parenthood and the paramount of the child’s best interests. South Africa’s Children’s Act 38 of 2005 and Kenya’s Children Act 38 of 2022 offer progressive models that recognize equal parental responsibility regardless of marital status, provide clear legal remedies for access disputes, and integrate international human rights norms into domestic law. The study employs a qualitative methodology, combining doctrinal legal analysis with insights from case law, scholarly literature and policy documents. It concludes by proposing a set of legal and policy reforms for Zambia, including statutory amendments, judicial training, institutional support mechanisms, and public awareness initiatives. These recommendations aim to align Zambia’s family law framework with its international obligations and to promote a more inclusive, child centered approach to parental access one that affirms the rights of all children to love, care and connection from both parents, irrespective of the circumstances of their birth.