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Is Kenya ready for legislation of marriage?

By Dann Okoth | July 21st 2013

By Dann Okoth

Will the Marriage and Matrimonial and Property Bills hurt the institution of marriage more than help cement and give more meaning to such relationships?

This is the question that begs answers even as opinion on the pros and cons of the Bill continue to be divided among legislators, experts and women’s rights organisations.

The Marriage Bill defines marriage as the voluntary union of a man and a woman whether in a monogamous union or polygamous union and registered in accordance with the act. It also grants all marriages the same legal status.

Some provisions of the Bill that have unsettled many men including male Parliamentarians include that which states men and women whose partners promise marriage but fail to stand by their word would be entitled to compensation.

Suffered damages

The aggrieved party would, however, have to convince a court that the promise was made and they had suffered damages as a result of it not being fulfilled.

Perhaps, more radically, the Bill proposes to introduce polygamy in marriages and legalises payment of dowry as well as outlaws the come-we-stay arrangements as legal marriages as carried in the first draft.

“It is difficult to legislate on an institution like marriage especially in Africa where the contextual issues around such unions are as complex and diverse as the communities themselves,” argues Dr Charles Olungah of the University of Nairobi.

“What bothers me most is that the Bill was crafted under an environment of activism and is fraught with fundamental legal flaws or oversights that could collapse the institution of marriage into a litigious process,” he says.

“There is also the issue of equality which is haphazardly addressed in the Bill, because if the Bill set out to create some semblance of equality in such a union why then does it discriminate against women when it comes to polygamous family. If a man can have more than one wife why then can’t a woman have more than one husband,” Mr Olungah poses.

Section 74 of the Bill recognises both monogamous and polygamous marriages. It states that a man wishing to be in a polygamous marriage must, however, submit to the registrar a statement containing the names of the existing wife or wives and their consent to the subsequent marriage.

Offensive provisions

“This particular provision in my opinion will unsettle many women who are already in stable marriages,” he goes on.

On this, even ardent defenders of women rights agree. “Obviously, there are provisions on the Bill that are offensive,” says Grace Maingi a human rights lawyer.

“I find the provisions on polygamy quite problematic because they defeat the principle of equality. Secondly, polygamy is the source of a myriad marital problems we have been grappling with for decades. Making it legal does not potentially offer a solution,” she adds.

She, however, notes that both bills (the Marriage Bill and Matrimonial Property Rights bills) have more good things than bad.

“The bills are quite significant and monumental in the sense that for a long time we have been relying on archaic laws to administer our institutions of marriage she says.

She notes, for example, that Kenya has been operating on the Married Women and Property act of 1882 adopted from the British Government.

She says the proposed Matrimonial and Property Rights Bill helps married couples to be clear on what the matrimonial property is and how to dispose of it in the vent of death or separation.

“In Kenya, we have had a lot of dispossession especially when the husband dies and the wife and children are left destitute. The Bill seeks to encompass both men and women and the children. Some people have read these provisions as a means to punish man but I tend to disagree,” she says.

Further, she says, Kenya is a signatory to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and was bound to affect the law.

CEDAW is an international treaty adopted in 1979 by the United Nations General Assembly. Described as an international bill of rights for women, it came into force on September 3, 1981. Over 50 countries, including Kenya have ratified the convention. According to Judy Thongori, an advocate in Nairobi the Bill is appropriate because it helps couples understand the institution of marriage.

Writing in a local daily last week, Ms Thongori says currently people have to navigate through at least two acts in order to understand their marriage status, rights and liabilities adding that the formalities are contained in one act, the rights and responsibility are contained in another.

One stop shop

“If the bill becomes law, it will become a one stop shop,” she says. “Currently, customary marriages are not registerable and no marriage certificates are issued. It is refreshing to note that these kinds of marriages will now be registered and marriages certificates issued.”

“There cannot be greater disempowerment than a woman who, when asked by the family lawyer of her marriage status she answers I do not know whether the law considers me married although I have lived together with my husband for 20 years and we have four children,” she observes.

Thongori says currently, customary unions are not accorded the same status as the statutory unions. “We have heard of courts debating what rights a person married under customary law has. In fact some of the earlier cases on division of matrimonial property had to first deal with whether a woman married under customary law could claim matrimonial property,” she says,

The Bill recognises customary marriages, potentially polygamous and conducted in accordance with the rites of any Kenyan communities, Islamic marriages, potentially polygamous and conducted in accordance with Islamic law, Hindu marriages monogamous and conducted in accordance with any other faith or other group as may be gazzetted.

However, the Bill faces a final hurdle—Parliament—dominated by men and who have expressed reservations about some of the provisions of the bills. Last week, Members of Parliament begged for maximum time to scrutinise the provisions in the two Bills and amend areas they suspected could affect men.


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