Gender diversity, sexuality and bodily autonomy should be respected in family unit

A group of friends join hands in a word of prayer after a family friend's day out at the Nairobi Arboretum. [Patrick Vidija, Standard]

The UN International Day of Families is celebrated every year to promote awareness of issues relating to families and to increase the knowledge of the social, economic and demographic processes affecting families. While protection of the family unit is important, embracing the diverse spectrum of family structures, including single-parent, blended families and now, same-sex parent families in some jurisdictions is paramount. Gender diversity, sexuality and bodily autonomy should also be respected in the family unit.

The Constitution of Kenya under Article 45 recognizes the family as the natural and fundamental unit of society and the state commits to protect the family unit. But what happens when the very values that should be embraced in the family are no longer present, including love, respect, and safety? For generations, perseverance stood as the cornerstone of marital unions, discouraging separation or divorce even in cases of abuse, compelling many women to endure untenable situations.

Protecting the family unit is important but it is important to acknowledge the necessity of dissolution of marriages within families when warranted, especially where lives are at risk. Data regarding instances of femicide in Kenya indicates fatalities occurring within familial settings due to intimate partner violence.

The Kenya Demographic Health Survey highlights that more than 41 per cent of Kenyan women experience sexual and/or physical violence by intimate partners in their lifetime. In a 12-month period, 31 per cent of women are reported to be living with active violence in their homes. The end result of this violence in most cases is femicide, which is the highest form of gender-based violence.

Despite efforts by religious conservatives to dissuade women from exiting abusive marriages to preserve the family structure, and amidst debates over constitutional amendments in Kenya aimed at bolstering family protection and complicating divorce proceedings, the imperative remains to confront the genuine challenges afflicting families.

The Marriage Act of 2014 highlights circumstances under which divorce may be pursued, including adultery, cruelty, desertion, exceptional depravity, and irretrievable breakdown of the marriage. However, the divorce process in Kenya is predominantly arduous, costly, and tedious. Many assert that substantiating claims of adultery in Kenya is more challenging than proving minor crimes due to the inherently private nature of such affairs.

The proposed amendments in the Marriage Bill of 2023 signify a significant stride forward. A pivotal addition is the introduction of a mutual consent divorce provision, Section 75A, applicable to Christian, civil, Hindu, and customary marriages. This provision facilitates expedited and less burdensome dissolution of marriage when both parties mutually agree to end the union, streamlining the process and alleviating court backlogs. Currently, the Bill is undergoing deliberations in the National Assembly.

A recent progressive ruling was made at the High Court in Nakuru, where Justice Samuel Mohomi in granting divorce on grounds of lost feelings stated that ‘’No man and woman can be bound by law or religion where no love and feelings exists in holding the union of marriage together.’’ While the protection of the family unit is crucial, it must not overshadow the importance of individual well-being, safety, and autonomy.

It's not enough to pay lip service to the importance of family; we must actively work towards creating environments where families can thrive. This includes ensuring that individuals have the resources and support they need to navigate difficult situations and make choices that are in their best interest. By prioritizing the well-being of individuals within families, we can build a society that is more just, equitable, and compassionate for all.

Kavutha Mutua is an Advocate of the High Court of Kenya and a Human Rights champion