After recent talks on Marriage Bill, I have grading for its content
By Charles Kanjama
| July 21st 2013
A good marking scheme must go beyond the popular sociological approach
This week I’m a teacher or, more accurately, an examiner. My student has done an exam, to wit, making proposals that can fundamentally alter the marriage law in Kenya. My marking scheme is simple, and arises from the Constitution. Article 45(1) requires the State to recognise and protect the family as the basis of social order. Article 45(2) protects adult heterosexual marriage based on the parties’ free consent. Article 45(3) demands equality between the spouses. And Article 53 recognises the child’s interests as paramount, including rights to be protected from harmful cultural practices and to enjoy parental care and protection.
These four critical aspects of any marriage law in Kenya amount to one basic and fundamental test: the proposed marriage law must contribute to the stability and integrity of marriage in Kenya. So this is the basic marking scheme to be used in grading the Marriage Bill. And an apt examiner will not be a family lawyer expert in divorcing couples, but a marriage counsellor with experience in encouraging couples to marry or to remain married, despite the crises that occasionally attend the institution.
A good marking scheme must go beyond the sociological approach that focuses on the how of marriage in Kenya. It must capture also the philosophical approach that tackles the whys of relationship dynamics. Some of the home-truths about marriage and relationships are counterintuitive. For example, if marriage is cheap, fewer couples bother to marry. If divorce is liberalised, more couples are discouraged from marrying or from remaining married. After all, why make the effort if you lack security? Naturally also, marriage is not only about the adults committing to one another; it is also about the children involved. But it is not possible to make children more secure in the family than the adults are. Also, if the State can be permitted to ignore the constitutional demand for gender equality in marriage by allowing polygamy, then the State will also ignore the constitutional demand for protection of children.
I grade the Marriage Bill as follows: Section 3: Definition of marriage. The idea that marriage is a voluntary union of one man and one woman for life has been jettisoned in favour of polygamy and loss of the idea of permanence. This is a C-. Section 6: Kinds of marriages. The consolidation of Christian, civil, customary, Hindu and Islamic marriages into one statute is a plus.
The introduction of a sixth generic category of marriage by future notice in the Gazette is of potential risk. The expansion of Christian marriage to cover not just African Christians but all Christians is a big plus. This is a B. Section 8 and 9: Subsisting polygamous and monogamous marriages. The law has been restated. However, the removal of rights of ministers of religion to oversee conversion of potentially polygamous unions to monogamous marriages is very disturbing. This is a C. Section 10 and 11: Prohibited marriages. The Bill restates the law on void marriages, and does so well. The glaring failure to clearly state that homosexual unions of any kind are prohibited is however a big omission. This is a B-. Section 12: Voidable marriages. Marriages can now be nullified at the option of either party if a number of procedural requirements are not met, for example failure to give notice of intention to marry. This can be abused. This is a B-. Part III to VI: Requirements for Christian, civil, customary, Hindu and Islamic marriages. Christian and civil marriages require 21-day notice of intention to marry to be published by the Director, presumably in the Gazette. Currently each church publishes notices via marriage banns. No similar requirements for Islamic and Hindu marriages. However, customary marriages to be notified to the Director three months after the fact. The provisions have been kept simple but are discriminatory of Christian marriages. This is a D. Part XI: Matrimonial disputes. The liberalisation of divorce, especially by the concept of irretrievable breakdown of marriage, is harmful to families. This is a C-. Section 76: Compensation for promise to marry. The absurd medieval experience of this law in England and elsewhere should inform us. This is a D. Overall grade. There are several good provisions in the Bill, but also some harmful ones. The Bill gets a B-.
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