Nairobi — The question of the place of customary Law in Kenya has vexed scholars and judicial minds who cannot agree on its place in modern society. This perception is hinged on the juxtaposition of customary practices, which vary from one community to another and the adoption of western ideals, which have made Africans to partially abandon their cultural practices.

From the standpoint of colonists customary practices were deemed to be evil and had to be eradicated through legislation, religion and the continuous process of whitewashing of the indigenous people over the superiority of western civilisation, white collar employment and pursuit of education.

No wonder we are still reeling from a hang over of the colonial era and still do not know, as it was then, where we belong and the path we are supposed to take more so as it pertains to customary practices.

Our law echoes the gaping hole alluded to above, vide the Judicature Act, Chapter 8 of the Laws of Kenya, Section 3(2) provides, "The High Court, the Court of Appeal and all subordinate courts shall be guided by African Customary Law in civil cases in which one or more of the parties is subject to it or affected by it. So far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay".

The point of contention is whose standards of justice and morality are applicable for any practice to be deemed repugnant. At the inception of this statute, the standards applicable were certainly those of colonists whose over romanticised pursuit was to transform the Africans.

If a practice was common among a particular community can it be reckoned to be repulsive to the community's way of life? Undoubtedly some practices had to be discarded with the passage of time as customary law is certainly dynamic and transforms to the conditions obtaining at the moment even though a snail pace.

For instance, the institution of marriage has been greatly affected by the unclear legislation surrounding the question of the practice of marrying more than one wife, a practice more prevalent in patriarchal society, which many ethnic groups in Kenya are. Polygyny was practised and, is still practice by Kenyan urbanites and ruralites.

Statutory marriage laws, which encompass Christian virtues and western practices, forbid any other nuptials arising thereafter as the parties lack the capacity to contract further marriages. Any other subsequent unions entered into are null and void thus bereft of any legal foundations.

Such a position, if strictly upheld and enforced by our courts of law will have cataclysmic consequences to the delicate family set up since marriages are intertwined with property relations, which tend to be emotive questions for courts of law to decide. In any event, families are the basic unit of society, thus such a cause is bound to destabilize social order.

If a union exists, despite the existence of a prior statutory marriage, which is an offence under our law but honoured more in breach than observance, and such union is declared to be void of any legal basis, that amounts to denying the victims any legal ground to assert their rights from any vantage point that one may approach this issue. This situation may render destitute many innocent parties, especially women and children ,by disinheriting them from the polygamist spouses or fathers.

However, through the device of the law such injustices have been soothed out of the understanding of the injustices that may be occasioned to innocent women and children by such marriage laws, which still exist in our statute books.

Section 3(5) of the Law of Succession Act Cap 160, Laws of Kenya recognises such other 'wives', notwithstanding the legality or illegality of their marriage unions, to have a right to inherit from their deceased bigamous husbands as dependants. Therefore, the status of the woman as a wife or otherwise is only recognised on the death of their husbands only for purposes of inheritance.

Another glaring example of the inadvisability of not recognising the place of customary law is in the case of woman to woman marriages practised among some communities in Kenya. Their essence was that marriage facilitated procreation hence it was a brilliant solution to barrenness or sterility within the social context of the time.

However, this practice is still live in Kenya despite the modern custom of adopting of children, which in any event, is not alien to African customs at all. Lady Justice Martha Koome once criticised the tradition stating that the practice in modern Kenya treats women as mere chattels consigned into bondage for purpose of reproduction or domestic servitude only to gain inheritance rights and which should be discouraged.

Her line of argument is that there are ways of getting children if one is biologically challenged through adoption and scientific methods

It is indisputable that that many customary practices denigrate the role of women in society and no reason today can be given to justify the continuation of such practices. But, where they do exist, a declaration to the contrary would cause more harm than good to the society. In any event, even criminalisation of people's cultural practices through legislation does not eradicate the bad practices.

As Justice J.B. Ojwang argues, customary law practices are dynamic and ameliorate, from time to time certainly, not in tandem with the rapid social transformation, that's why cremation, he opines, can be deemed to be acceptable today in a customary context if one so wishes as hitherto practices by various communities have transformed over time.