Woman asks court to scrap old law allowing forced conjugal relations

A woman has moved to court seeking to have two laws adopted by Kenya from colonial masters, which allow a married spouse to seek court orders to compel the other half to grant conjugal rights, declared unconstitutional.

At the same time, Victoria Loch Owino wants the court to declare that sex without the consent of either party in marriage amounts to marital rape.

This comes as a lawyer filed a petition with Parliament seeking amendments to the Marriage Act to allow couples to end marriages by mutual agreement.

Rogers Monda argued that couples who have opted to end marriages often manufacture grievances, such as cruelty and desertion, in a bid to have a basis before courts for why they cannot continue being together.

In her case, Loch stated that the Sexual Offences Act, and in particular Section 43, indicates that the Act does not apply to persons lawfully married to each other.

Further, she was of the view that Section 84 (3) of the Marriage Act, 2014, grants a judge authority, where a party has applied, to order either a man or a woman who has packed up and left a marriage without a justifiable reason to order them to come back and to grant the other half marital sex.

“Where either the husband or wife has, without reasonable grounds, withdrawn from the society of the other, the aggrieved party may make an application to the court for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such application and there being no legal ground why the application should not be granted, may order restitution of conjugal rights accordingly,” Section 84(3) reads.

According to her, the section is a colonial relic, borrowed from the British government and which cannot apply in today’s society.

Loch said the interpretation of both the Sexual Offences Act and Section 83 (4) amounts to allowing marital rape, a medieval concept that married men and women do not have a say in when and if they can grant intimacy.

According to her, despite marriage presuming couples to be ‘one’, they maintain bodily autonomy.

“Each provision is independently unconstitutional and void standing alone, and that their combined statutory operation constructs a closed regime of state-facilitated domestic servitude and non-derogable violation,” argued Loch.

She argued that Section 84(3) is a contradiction of Section 84(2), which states that no case can be filed to force one spouse to cohabit with other.

“The right to freedom and security of the person (Article 29): Compelling an unwilling individual to submit to physical cohabitation and intimate domestic association constitutes cruel, inhuman or degrading treatment, which Article 25 (a) places strictly beyond the reach of limitation under Article 24,” continued Loch.

She insisted that even with the use of the word unreasonable, the law is still vague on how Judges and Magistrates ought to get into bedrooms and measure what is justifiable or adequate for a person to leave.

On the caveat provided for in the Sexual Offences Act, Loch argued that the lawmakers, just as colonial masters erroneously thought women, upon a man putting a ring on the finger, give a permanent right to sexual intercourse.

According to her, any non-consensual sex, even in marriages, amounts to cruelty and unfairly denies any married person the right to protection against rape and abuse and violence, which includes sexual violence.