THE REVOLUTIONARY MARRIAGE LAW ON ITS WAY TO KENYA

By PETER LEFTIE
September 28 2009

Cabinet ponders revolutionary Bills set to redefine the family, property and rights.
A new law that seeks to revolutionise marriage by outlawing forced marriage and wife inheritance while embracing come-we-stay unions has been drafted.

The Marriage Bill also provides that one does not have to pay dowry to get married, but recognises dowry payment by those who are capable of doing so. It also states clearly that dowry will not be recovered in the event that the marriage collapses.

However, the Bill’s fate hangs in the balance after the Cabinet stopped its debate on grounds that further consultations needed to be made before it is tabled in Parliament.

Last week’s Cabinet meeting chaired by President Kibaki stopped debate on the draft Marriage Bill, Matrimonial Property Bill and the Family Protection Bill to pave the way for “further consultations” with MPs and other stakeholders.

Broaden consensus

“The Cabinet decided to hold further consultations with MPs and other stakeholders in order to broaden consensus on the Bills before they are tabled in Parliament,” read a Cabinet brief dispatched to newsrooms after the session.

The decision has thrown into uncertainty the Bill that also proposes that any man or woman in a marriage would provide for the upkeep of the financially weaker spouse.

According to the draft copy of the Bill, a couple will be deemed to be legally married if they cohabit for two years or more.

It also allows the bridegroom and the bride to decide whether their marriage will remain monogamous or become polygamous at some stage, so long as they both consent in writing.

The Bill further grants a widow the right to marry a person of her choice — a clear attempt to eradicate the culture of forced wife inheritance practised among some Kenyan communities.

It also blocks the marriage of a person to his stepmother, a practice which still prevails in some parts of the country, and further blocks one from marrying an adopted son or daughter.

The Bill seeks to outlaw child marriages by setting the minimum age for marriage at 18 years.

A minister who spoke to the Nation dispelled fears by gender activists that the Cabinet had effectively shot down the three Bills.

“What we did was to refer the Bills back to the drafters so that they are consolidated into one piece of legislation because they are all related,” said the minister, who asked not to be named because he is not allowed to reveal Cabinet secrets.

Family lawyer Judy Thongori, in an interview with the Nation, defended the three Bills, saying they were “well-intentioned”.

Ms Thongori argued that the Marriage Bill, in particular, would consolidate all the seven laws currently governing marriages into one.

“They are very good Bills, we do not need to consolidate them into one. Their enactment will address once and for all the inconsistencies in the various pieces of legislation relating to marriage. They do not in any way segregate against one gender,” she stated.

Fr Vincent Wambugu, the secretary of the Kenya Episcopal Conference, which is the assembly of Catholic bishops in the country, objected to the clause recognising the come-we-stay marriages.

“Marriages should not be taken that casually. They are a blessing from God and they are not influenced by issues of property and inheritance. You do not cohabit for two years and declare you are married.”

Renowned Islamic preacher and nominated MP Sheikh Mohammed Dor cautioned the Cabinet to tread cautiously on the three laws.

“We are happy they rejected them in their current form. We will vigorously resist laws which undermine Islamic statutes regarding marriage and the rights of women because these are clearly spelt out,” he said.

Under the Marriage Bill, marriages will be monogamous or “potentially” polygamous where the man could marry more wives without divorcing the first wife.

Couples planning to marry will give a notice of their intention to the registrar of marriages between three weeks to three months of the intended marriage.

Marriages contracted under either customary or Islamic law are deemed as polygamous or potentially polygamous. In all other cases, marriages are presumed to be monogamous meaning that those cohabiting have to agree to have monogamous unions.

Null and void

The Bill also deems a marriage null and void if one of the parties is found to have been insane, drunk or under the influence of drugs at the time of consenting to the marriage.

The marriage will also be declared null and void if it was conducted in the absence of the bride or the bridegroom or where either party was not capable of consummating it and has remained in that state ever since.

The Bill recognises marriages under the Islamic and the Hindu faith while also allowing the registration of customary marriages as opposed to the current situation where no Act of Parliament provides for such marriages.

The Bill provides that where the parties are separated, either spouse shall maintain the other spouse. In the current laws, the husband has a duty to maintain a needy wife, but there is no provision for the wife to maintain a needy husband.

The Bill also allows a man to borrow money on the strength of his wife’s finances and vice versa, so long as the money is to be used to cater for the family’s needs.

The Bill lists the grounds for divorce as including proven cases of adultery, cruelty, neglect and separation or desertion for at least two years.