9 October 2009

Kenya: Polygamy is an Offence Rarely Prosecuted and Often Forgiven

Nairobi — There is no question about it, a bigamist is a polygamist. The only difference is that the law says a bigamist is a criminal who should be thrown into jail. Whether one becomes such a criminal depends on the operation of the law. Under our laws, morality has nothing to do with it.

If a man celebrates his first marriage under the African Christian Marriage and Divorce Act, the Marriage Act or the Hindu Marriage and Divorce Act, he becomes a bigamist -- a criminal -- if he marries another woman or women unless the first marriage is legally dissolved.

But if he celebrates his first marriage under the African customary law or the Mohammedan Marriage, Divorce and Succession Act, he remains a law-abiding citizen if he marries another wife or wives.

However, if after undegoing the African customary law marriage rites, as many Kenyans marrying today are apt to do, he celebrates the first marriage in church or in the office of a registrar-general of marriages, in which he gets a marriage certificate, he will automatically convert the customary law marriage into a monogamous one, or the English-type marriage.

Then if he marries another woman or women, he becomes a criminal, a bigamist, liable to be jailed for five years.On the other hand, if he marries in church or in the office of a registrar-general of marriages, he cannot convert the English-type marriage into a customary-law one by performing customary law rites.

Our written laws regard marriages contracted under the African customary law as inferior, that is of a lower rank or quality to English-type marriages. That is why customary-law marriages can be "upgraded" into English-type ones, but not the other way around.

The purpose of criminalising bigamy, which we inherited from England, is to kill African customary law marriages, which are polygamous or potentially polygamous, and promote the English view of marriage that marriage exists only between one man and one woman.

This view goes back to 1604 when the English parliament turned polygamy into an offence, designating it as "bigamy". Three centuries later, when the Englishman came to our shores he brought the offence of bigamy with him.But throughout history, African societies have accepted plural marriages, which are also accepted in the bible, which is populated by patriarchs and kings who practised polygamy.

But even so, Christian churches have come to view polygamy as a repudiation of Christian norms. They believe polygamy, or bigamy, is immoral. This is the inspiration that drives the English view of marriages.

In 1866, in the seminal case of Hyde v. Hyde, an English court said the English law of England "adapted to the Christian marriage, and that it is wholly inapplicable to polygamy."

Polygamy is, however, still legal in many African countries, though most modern Africans do not practise it (often for economic reasons). But it is recognised by written law in at least 24 African countries, while in many others, including Kenya, it is recognised by customary law.

In Kenya, bigamy is rarely prosecuted, and when it is, the courts are overly lenient. When, for example, Simon Peter Gaita, 61, was convicted of bigamy by Nyeri senior resident magistrate Charles Nyamweya on August 29, 2001, he was fined Sh5,000.

But there is no provision of such punishment for bigamy. Section 171 of the Penal Code provides for imprisonment for five years, while Section 42 of the Marriage Act provides for imprisonment "not exceeding five years".

And when John Righ Kagauma, 75, was convicted of bigamy on March 25, 2004, and sentenced to three years jail, he appealed and High Court Judge Jessie Lesiit ruled on April 5, 2006, that "a non-custodial sentence would be appropriate." She noted that the offence of bigamy "is virtually dormant in Kenya and hardly are people charged for it."

Other judges hold the view that bigamy should be treated as a civil rather than criminal case, and should be sorted out between a complaining wife and the husband rather than treated as an offence against the State. Isn't it time, then, to scrap bigamy as a criminal offence since complainants have other venues for redress and because it's un-African?

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