Kenya’s New Marriage Law: A Call to Critical Reflection
E. Munshya, LLB (Hons), M.Div.
In a culture driven by headlines, our people mostly never take the time to read the fine print. Ours is a society, which ignores the body of any information in preference for what the headlines are screaming. Just a few weeks ago, the headlines squealed and most of our people believed that Kenya had established new polygamy laws. With that misleading information came the outraged. Although few had taken to read the actual law that the headlines were talking about, they rushed to condemn the new law that Kenya had enacted. Western media sources claimed that the Kenyan president “had signed a law, which will now allow Kenyan men to marry more than one wife.” This was the gist of the news. And this essence was clearly misleading. The headline flew very fast and many Africans, including some Zambians jumped on the bandwagon to condemn this law. This information was very disingenuous to say the least. Headlines claiming this are filled with half –truths. To be fair to a good conversation that Africans must have, we must relook at what the law actually says and why most African societies including Zambia need to reform and repackage its marriage laws.
Just like any other law, this legislation is not perfect. There are some provisions that need refining. For example, it creates too many categories of marriages. It has quite a number of marriages; some are contracted under Islam, some under Christianity, others under customary law. It then has what it calls civil marriages. The law could need a little simplicity than this complex make up of these marriage categories. The new law also does seem to suggest that a witness of a civil marriage should not be “intoxicated”. It is quite surprising why it would contain such a provision. It does not define what is meant by intoxication. Nevertheless, it is trite law that a contract created while intoxicated still remains a valid contract. I wonder why it specifically prohibits intoxicated people from being witnesses to a marriage. The law also does run into definitional problems by trying to define what is meant by the Hindu religion. The definition goes to define Hinduism as “including Buddhism”. The Kenyan parliament is not a novice parliament to make such a definitional blunder. The law also forbids marriage between cousins. This proscription however, does not apply to marriages contracted under Islam. This ban would be controversial in Zambia, considering that some Zambian tribes do recognize customary marriages among distant cousins.
In spite of the obvious weaknesses in this piece of legislation, it is in my opinion a progressive legislation. First, it is quite significant in the way it raises minimum marriage age for ladies from the previously undefined age to the age of eighteen. Under this new law, a woman cannot be married unless she is eighteen. By far, this provision removes the ambiguity that came with some African customary practices, which had no clear minimum age for marriage. With this new provision it means no one using either tradition or religion can go marrying off young girls.
Second, this law attempts to consolidate into one piece of legislation several scattered provisions that dealt with marriage. The law repealed about ten other Acts dealing with marriage. It certainly has not simplified marriages and their statutory provisions, but it is good that now Kenyans will have to go to one piece of legislation and find the critical information they need about this important institution. Consolidation is good for laws. This is even truer for most the patchwork laws we inherited from England and Wales.
Third, this law has brought under statutory cover, the customary practice of polygamy. This is the part that got newsmen and newswomen around the world most interested. This law did not create anything new with regard to the practice of polygamy; all it did was grant statutory recognition to customary marriages that already have the presumption of polygamy. The law did not in any way impose the presumption of polygamy on Christian marriages at all. To put it simply, there is a presumption of polygamy on all marriages contracted customarily, but this is not the case with civil or Christian marriages as defined by this Act. Bringing statutory recognition to the customary practice of polygamy has several advantages. It certainly, could help partners in such polygamous relationships to have more access to property rights than is the case under customary practice. Additionally, bringing customary marriages under statute removes the second-class stigma assigned to such marriages. In Zambia, most marriages are contracted under customary practices. It is ridiculous that so many years after independence, we should still stigmatize and delegitimize customary marriages which most of our people contract.
This then brings us to the issue of polygamy specifically. Does this law now make Kenya more polygamous than was the case before the law? Obviously, the answer is no. As I have stated above, this law only grants statutory recognition to those marriages that until now had not had that recognition. Kenyan men will not suddenly go and get wife number two, three or four. If they did, it certainly is not because of this law!
We might need to look at the implications of this law on what is commonly referred to as “Christian marriages”. In Zambia, we do not have the stark distinction that Kenya does seem to have drawn between the “civil marriage” and the “Christian marriage”. Nevertheless, in Zambian marriages contracted in the church while still retaining the “Christian” fervour are “civil marriages”. To characterize these civil marriages as Christian while not extending the same to some customary marriage is a serious misnomer. This is perhaps where Zambian law needs reform. The only thing that should define a Christian marriage should be the faith of the people involved in the marriage and not the way it was contracted. It is ridiculous to only regard those marriages conducted under the “statutory” law to be “Christian” marriages while ignoring millions of other marriages involving Christians who nevertheless married under customary law. A customary marriage could still be a Christian marriage, and we might need statutory changes to accommodate this.
I have tried to be careful here not to delve into the debate of the moral undesirability of polygamy. I am also not going to delve into what should be the Christian view of polygamy. It is beyond this article. However, I have tried to challenge the misconceptions concerning this new Kenyan law. The law is not a polygamy law, but a marriage reform law. Looked at it from that perspective, we should all find reasons to move beyond condemnation to critical reflection.