By Gatonye Gathura
If passed in its current form, the proposed Marriage Bill 2013 could significantly affect the lives of about 2.5 million spouses in polygamous unions and many others who are indirectly attached to such relationships.
Most of these, about 1.8 million, are wives living in polygamous marriages or unions compared to about 700,000 husbands in similar unions.
Assuming each of the women has about three children, then about 5.4 million siblings would also have a good reason to want to be involved in the debate.
Throw in in-laws, cousins, uncles and other relatives, including those others planning to join in polygamous marriages then you have more than half of Kenya’s 40 million people having a stake in the debate.
The Kenya Demographic Health Survey estimates that 60 per cent of women in Kenya are married and 13 per cent of these are in polygamous unions. The same document says about 50 per cent of men in the country are married with seven per cent of them in polygamous unions.
So where are these polygamous Kenyans? North Eastern has the highest proportion of women, more than a third or 36 per cent in polygamous unions. In Nairobi only two per cent of women are in a polygamous unions but this does not take into account those secretly living in similar relationships.
Western, Nyanza, Rift Valley, and Coast provinces all have proportions ranging between 15 and 23 per cent of women in polygamous relationships.
Among men, Nyanza has the highest number living in polygamous unions while the least number of males in such unions are to be found in Central Province, according to the 2009 KDHS.
Because of westernisation of the Kenyan communities and a huge population of younger educated people, one would expect a fast decline in polygamous marriages but this does not seem to be the case.
The health survey indicates only a slight decline of polygamy over the years.
“The proportion of married women reporting one or more co-wives has declined from 16 per cent in 2003 to 13 per cent in 2008, and the proportion of married men who report having more than one wife has declined from 10 per cent to seven per cent,” says the KDHS.
Who is most likely to be found in such a union? Population experts say women with little or no education and also the poorest are most likely to be in such unions. These unions are also more prevalent in rural than urban areas of the country.
In all polygamous unions, the man has remained the king but now with the Marriage Bill 2013 trying to equalise all partners in marriage, men may feel their throne is being threatened.
The proposed Bill wants polygamy recognised under Muslim or customary marriage provided that a man declares before marrying his first wife that it is a potentially polygamous union.
It also suggests that polygamy not be allowed for those taking part in a Christian or civil marriage. On adoption of such a law, any man who thinks he can eat his cake by secretly marrying other wives risks being put in jail for five years and or fined Sh300,000.
The significant important bit of the proposed law is the requirement that all polygamous marriages be registered, a move that legally protects the wives and their children in securing their rights such as inheritance and child upkeep in case of a break-up.
Can a man who is currently polygamous jump out of such a union and revert to a monogamous marriage to escape the proposed registration? The answer is — he cannot.
“A polygamous marriage may not be converted to a monogamous marriage unless at the time of the conversion the husband has only one wife,” says the Bill.
However, there are things the law cannot take away from the man because in a polygamous marriage he is the only “whole” in the union. He is the only one who can talk of my wives or wife, my children while the woman can only talk of our husband and our children.
He is, and despite the law, will remain the legitimate father to the children while the children share the father with the other wives’ children, hence terms such as step brothers or sisters and step mothers. No step-father.
Legal experts say the Bill is still biased against women because it is only men who can propose whether or not to remain in a monogamous union.
Nairobi lawyer Beverline Ongaro says this in itself defies the principle of equality of marriage for the very fact that a man can enter into subsequent marriage and women cannot is a first indicator that they are not equal at the commencement of the marriage.
Also women married to a polygamous husband will give 100 per cent of their contribution of time, effort and finances and taking care of children but such a man’s contribution cannot be 100 per cent because he has to contribute towards marriage between him and the other women.
While gender activists oppose the Bill mainly because of bias and inequality, population experts argue that such unions are not healthy in the fight to control population growth.
Samuel Ogola, a programme officer at the National Coordinating Agency for Population and Development, says because of competition among the various wives, there is a real possibility of each woman wanting more children than their co-wives, increasing the average number of births per woman.
With other recent laws, which allow for inheritance by female children, experts feel this could derail efforts to bring down population growth.
The other health problem posed by polygamous marriages, says Dr Nicholas Muraguri, a HIV expert, is the possible spread of the virus through such unions. Recent data shows that one in 10 married or cohabitating couples is HIV positive.
The data further shows that without intervention, eight to 12 per cent of HIV-infected adults living as couples will transmit the virus to their partners annually.
A recent survey by the group Population Action International found that seven per cent of those in monogamous relationships were HIV positive, but the rate reaches 11 per cent among those in polygamous unions.
But despite these hiccups, researchers say the spirit of polygamy thrives in Kenya and most of Africa.
“It has also become rather common for Christianised monogamous men to have one or more “outside wives” or “girlfriends,” provided they are wealthy enough to afford the luxury,” says Prof Yasuko Hayase of Meikai University, Japan in a study of polygamy in Kenya, Senegal, Ghana and Zimbabwe.
He says most urban men in these countries consider the possession of outside wives a reflection of high status and achievement. “So the spirit of polygamy still remains very strong.”
The legislators discussing the law may want to borrow from an earlier study carried out by Miriam Rubino de Rinck of the United States International University in Nairobi.
The researcher looked at what students at her institution and those at the University of Nairobi thought about polygamy and involved 129 pupils. Only a slight majority of the students thought polygamy was an outdated practice with most saying it was alright if both parties have consented.
Many of those who said they were most unlikely to get into a polygamous marriage cited the fact that during the study there was not even the suggestion that the practice could be legalised, but with the legalisation prospects now at the doorstep many could change their minds.
Those who may want to give polygamy a trial but are not sure may take heart in the fact that the law is not cast on mortar and stone. It gives some window for experimentation. The Bill proposes that a customary marriage to a first wife can be registered with the option of later turning it to a polygamous union.
This is like hanging the Damocles’ Sword over the head of the wife with the threat that if for any reason the man is not satisfied he could bring another woman or women — but of cause with ‘her consent.’