By Charles Kanjama
Reading through the draft Marriage Bill recently, a curious thought struck me. That despite the drafters’ best intentions, they had concurrently entrenched the weaknesses of both traditional and modern marriage. They had robbed Peter to pay Paul, leaving Peter miffed at the theft and Paul infuriated at the charity. The underlying philosophy of marriage law is captured in Article 45 of the Constitution.
The family is recognised as the natural and fundamental unit of society and the necessary basis of social order. The consequence is explicitly stated, "The family... shall enjoy the recognition and protection of the State." So the primary goal of our future marriage law is the need to safeguard family integrity and stability. From philosophical, empirical and cultural perspectives, family integrity and stability are also to be promoted in the best interests of children, an important consideration in Article 53 of the Constitution. The two primary goods of family life are love and unity of the spouses and the procreation and education of children. Simply stated, ‘companionship and children’, or as the Americans quip: ‘babies and bonding’.
There are three other important constitutional principles that must be captured by our marriage law. The first is the principle of equality, especially between men and women (art 27, 45(3)). The second is the principle of constitutional supremacy (Art 2(4)). The third is the principle of religious freedom (Art 24(4), 32). Traditional marriage promoted family stability by making divorce difficult. Being rather chauvinist, polygamy was allowed as a concession to entrenched masculine infidelity. Modern Western marriage promotes family integrity by outlawing polygamy, with its ills of inequality, divided loyalty and harmful competition.
It allows divorce as a concession to entrenched character weaknesses, of both men and women. Kenya’s existing marriage regime recognises the incompatibility of traditional and modern marriage. Traditional marriage was polygamous or potentially polygamous. Modern marriage is monogamous, and its violation leads to the offence of bigamy.
Thus traditional marriage was preserved in a legal ghetto, lacking statutory oversight and marriage certificates. The idea was to slowly squeeze polygamy out of existence. Kenyan family law should strengthen marriage by addressing its twin weaknesses: traditional polygamy and easy modern divorce.
Instead the Marriage Bill does the reverse. It makes divorce easy through the subtle but dangerous philosophy of ‘no-fault divorce’ and the toxic concept, ‘irretrievable breakdown of marriage’. The truth is that reconciliation is always possible until the court issues a decree absolute of divorce or nullity. Equally bad is the attempt to reconcile polygamy with the principle of equality.
There is no institution that entrenches inequality like polygamy. It touches us in our most intimate and domestic environment, and educates and socialises our children at their most susceptible and vulnerable moments to believe in female inferiority. No amount of affirmative action in business, politics or culture can reverse inequality if polygamy gets the blessing of law despite our new Constitution.
The argument against future polygamy is ultimately not an empirical or cultural argument. It is simply a dogmatic argument about equality. So we need courageous champions to shake our cultural complacency through a sustained attack against polygamy.
I have agonised over whether we should permit a religious exemption for Islamic polygamy, "to the extent strictly necessary for the application of Muslim law before the Kadhis’ courts."
Article 24(4) is ambivalent, since courts are judicial organs and marriage is an extra-judicial ceremony. Still, the public policy stance that has worked in some Muslim countries was to gradually curtail religious polygamy by demanding the first wife’s prior informed consent plus equality safeguards in the arrangement.
Now is the time to eradicate cultural polygamy, not entrench it.
—The author is an Advocate of the High Court
