25 November 2007
editorial
Nairobi — If a man and a woman lived together and behaved as if they were married, in Kenyan law, they are married. The principle of the presumption of marriage is established in law by a 1976 Court of Appeal judgment.
In a society that claims that the family is its foundation, then the perplexing state of the institution of marriage, its rules and the laid back nature of the contract establishing it, is difficult to understand.
If one were to ask: What, to a Kenyan, is marriage, you would be constrained to answer, it depends. There are nine separate laws governing marriage and marriage means different things in the many legal traditions - African customary traditions, Hindu culture, English law and Islamic law.
Of course the confluence of all these tributaries is the marriage certificate which is easily obtained after either a religious or simple civil ceremony. But a lot of conflict within (and after) marriage could be avoided if the rules - such as those concerning property, custody of children and polygamy - were clearly defined and uniformly set out in one piece of legislation.
Many efforts to do this since independence have failed because of chauvinism in Parliament. The Marriage Bill was condemned as "un-African" and shot down by MPs in July 1981. Its major failing was that it empowered wives by requiring that their husbands seek their consent before marrying another wife. It also wanted fathers to provide for children born out of wedlock.
Another law, the Marriage Bill 2007, is now in the works and it is likely to become as controversial as all other efforts before it. The proposed law looks like it suspiciously panders to male chauvinism and attempts to win acceptance by being very relaxed about its provisions, some of which are summarized below.
First, it seeks to make that widespread practice called come-we-stay respectable. Come-we-stay marriages, under the proposals, will become registrable. And the couple need not go to the Attorney-General's chambers; there will be registrars of marriages all the place.
Secondly, it will be possible for the poor (and the mean) to get married on loan. Marriage will be a complete contract irrespective of the status of dowry. That is to say that you do not need to pay dowry for your marriage to be complete.
Third, unless otherwise specified, the come-we-stay marriage (like the ex-divided share) will be ex-community property. That is to say that what belongs to the wife is the wife's unless it is specified that the property will be communal property and therefore in the event of a divorce, everything is shared 50-50.
Fourth, polygamy is okay. It will be legitimate and legal provided that the man tells his first wife that he intends to go multiple at some stage.
There are useful proposals in the Bill but it is also quite clear that its authors are too willing to grant men rights that are denied women. It is the kind of slant that would see a male-dominated, hypocritical Parliament pass it in record time.
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In Daily Nation 29th Sep 2009, about polygamy the Bill states that the bride has to be told by the man that he intends to marry other wives in future. It's the bride and not the wife meaning the wife doesn't have the right to know, which is risky it doesn't protect those who are already married.