By Kenyatta Otieno
In May, the Land and Environmental Court in Kisumu ruled in favour of Eldoret businessman Jackson Kibor against his sons in a land dispute. The controversial businessman then threatened to file another case to be allowed to determine the paternity of the sons he had sued. I am writing this article on Fathers’ Day and meditating about fatherhood in the African setting.
Kibor’s actions made me think of our cultures in relation to paternity. I am Luo; Kibor is a Kalenjin On the surface, this might present different scenarios but I believe the spirit of African customs transcend communities. My take is this: if Kibor decides to file his suit, it would be important for the court to look at the case through African lens. Customary Law is recognized by our courts as long as it does not contravene the Constitution. The burden is in proving the validity of custom as universally accepted.
The idea of Customary Law is in the norms, practices and customs of indigenous peoples and local communities. One definition states “custom” as a “rule of conduct, obligatory on those within its scope, established by practice over a long time. Customs are also specific norms or rules that are orally held and transmitted, and applied by community institutions to guide all aspects of life. It is instructive to note that we have discarded our traditional way of life which poses challenges to practice and interpretation. This means that customs may not be binding to people who can prove they have never lived by them, hence our reliance on secular law.
allow me to recap the story of Okonkwo in Chinua Achebe’s debut novel Things Fall Apart. A member of a neighbouring clan kills a woman from Okonkwo’s clan of Umuofia. The clan pays for the murder by giving Umuofia a boy called Ikemefuna as compensation. Ikemefuna quickly becomes a well-loved member of the family. He serves as a role model for Okonkwo’s eldest son, Nwoye, and over time he also earns Okonkwo’s respect. Ogbuefi Ezeudu, a village elder, informs Okonkwo that the Oracle has decreed that Ikemefuna must be killed. He also informs Okonkwo that since Ikemefuna regards him as his father he must not take part in the killing. Okonkwo and a group of clansmen takeIkemefuna to the forest where the assigned man’s blow fails to kill the boy, and the man calls Okonkwo to help. Okonkwo. Despite Ezeudu’s warning, Okonkwo kills his foster son because he is afraid to look weak before his clansmen, unwittingly setting up his downfall and eventual suicide.
There is a Luo legend of Ogila the Hare, which has striking resemblance to the biblical King Solomon. In the legend, Ogila was tasked with settling a dispute between two cattle keepers. Like the two women before Solomon, both the owner of the bull that mounted the heifer and the owner of the heifer claimed ownership of the calf. Ogila posed the question whether bulls give birth and ruled that the owner of the heifer owned the calf. The important lesson here is custom among the Luo that he who marries a woman becomes father to all her children.
I believe that as much as Kibor lived with the mother of his sons as husband, they are his children, whether he sired them or not, and regardless of the fact that he later divorced her.
In November 2019, Judge Aggrey Muchelule ruled that parents have a social — not legal — responsibility to support children above the age of eighteen except in special circumstances. The ruling was made after a 28-year-old daughter sued her father for failing to pay her university fees despite having the ability to do so.
So what is this social responsibility? It is customary law. Our parents supported us and so we support our children. This support can be legal or otherwise, but it is a responsibility nevertheless. This is the responsibility Jackson Kibor is trying to evade. The African way is clear; a child who grows up in your household is your responsibility, whether you are bound biologically or legally.
Societies are judged by how they treat their children. The moment we begin to subject our children to rejection even if they are adults, we set a bad precedence. We began by making social rejection normal; now we want to take it before the law. We are losing it.
If we can apply the law to keep children away from their fathers, then we can use the same law to push absentee fathers back to their children. The interest of the child should always come before the whims of their parents.