Marriage Law Debate: Are Kenyans Inherently Polygamous?

“Since we became independent and in the 10 lives of the Independent Parliament, we have not found time to legislate over our families. One could almost ask whether our independence has not just been skin-deep if we have not bothered to liberate our families from dictation by such colonial relics as the family Laws of 1962.”
– Judy Thongori, a leading Family Law practitioner

The history behind the failed attempts to enact a comprehensive Marriage Bill in our country is something former law lecturer, now Deputy Supreme Court Justice Nancy Baraza once termed as ‘very sad indeed’. It is no secret that both the 1970 and the mid-1990s parliaments shelved the bill because of their strong opposition to the proposed criminalisation of adultery and the non-recognition of polygamy. See, polygamy in particular is deemed to be part and parcel of “african” culture ergo any Western law that went against this was considered “Un-african”.

So now, thanks to Nancy Baraza and the good folks over at the Kenya Law Reform Commission, we now have a new Marriage Bill. A Bill that doesn’t criminalise adultery and expressly recognizes polygamous marriages. The question I would love to be answered by our women is whether a declaration by their spouse-to-be that their marriage is potentially polygamous would deter them from getting married in the first place? And perhaps more generally, does this provision promote/condone promiscuity by men in society?

Anyways, before I speculate on whether parliamentarians would go for this Bill or not, allow me to begin by pin-pointing the two reasons that may have informed the MPs rejecting the Marriage Bills in the past.

First and foremost, there is the issue of defensive law-making, whereby our parliamentarians scrutinize all Bills tabled before them simply on the basis of the following question : « How will this piece of legislation affect me directly ? » This simplistic approach to legislative deliberation is still very prevalent today and is clearly very self-centered in nature. This might well be the reason that the Marriage Bills tabled in the past were shelved because MPs were reluctant to enact provisions that would empower the State to sanction how they chose to conduct their private lives. It is well known that an overwhelming number of parliamentarians are in fact male and since most cases of adultery are committed by men, it follows that this reality may have worked against the passing of the previous Marriage Bills.

Secondly, MPs have tended to be very cautious about Bills that purport to legislate on so-called private matters. In the past, the feeling was any Marriage Bill that shuns polygamy and criminalises adultery is ‘un-african’, plain and simple therefore its enactment would be tantamount to conforming to Western standards of what constitutes a ‘marriage’ and what should be penalised as ‘immoral’ or ‘wrong’ within the family setting.

So in essence what the Marriage Bill has done is try to reflect the prevailing views on the institution of marriage while pussy-footing over the contentious matters like gay unions, polyandry and other possible issues of equal treatment under the law for both men and women. This Bill is thus a compromise reached so that we can atleast have our first home-grown Marriage law. This Bill is also a harmonized law that will bring together the numerous existing marriage laws under one law. That much we desperately need.

17 thoughts on “Marriage Law Debate: Are Kenyans Inherently Polygamous?

  1. It’s not a question of whether we need a Kenyan Marriage bill or not…Personally I don’t like the fact that it allows polygamy but people are not guided by bills, they are guided by morals..this bill will just allow would be polygamists a chance to legalize their marriages… 0.00000001% of Kenyan women would agree to be co-wives…an African apologist I prefer to pick up positive aspects of African culture and polygamy is not one of them…mind you adultery was not condoned in African tradition .Marriage was treated with the sanctity it deserves. After all this hullablloo…I would like to see the number of polygamous marriages that will take place. Finally my laws on life will be guided by morality and not laws written by mere men!!!

    • I agree with you 100% ,who said that we are guided by bills made by men which are today going against the main standards of morality in any given society!!!!!!!!!!And these stand be congregations in various churches under the name “CHRISTIANS”.These are pure traditions of many which lrad to the destruction of Sodom and Gomorrah,

  2. Kenyans arent ready for anything called sexual orientation, homosexuality etc… We made that fact abundantly clear when we were negotiating changes to the Draft Harmonised Constitution so I guess let’s start with a Uniform Marriage and Family Law then take it from there.

  3. Pingback: Eh, Why Exactly Are We Legalizing Polygamy? « Soul Spinster

  4. Pingback: Eh, Why Exactly Are We Legalizing Polygamy? « Soul Spinster

  5. 1. A Marriage Bill that does not provide for adultery as the basis for divorce is just insulting… but I thought the Bill covers for this? Last time I read it, adultery was included in there!!

    2. The reason the Bill provides for polygamous unions is probably the difficulties presented in previous cases where a man enters into a statutory/church marriage then goes on to marry other women through cutomary laws that do not frown upon polygamy, and then these subsequent wives being left high and dry when it comes to matters such as succession. But trying to cure that problem by providing that both parties entering into a marriage declare and confirm that the marriage is potentially polygamous is just a load of bollocks. As Kal notes 0.0001% of women would agree to that. However the fact remains that SIGNIFICANTLY MORE than 0.0001% find themselves dealing with being a co-wife (officially or unofficially). How are our laws supposed to deal with that, taking into account that there are two or more women on either side probably with dependants trying to assert their rights?

    3. I agree with you NV on the fact that most of our MPs do not percieve legislation as a process of making laws that will live beyond them into future generations. The spirit polgamy and polyandry in the traditional sense (where the deeper objective was usually wealth re-ditstribution, maintaining of blood ties or just to ensure the continuation of family units through children) has deteriorated seriously. The mordern perception of why men would want to be polygamous is to stem infidelity/promiscuity.Previous nobler objectives of these practices are nowhere to be seen in the For/Against arguments. I dare say that any objective and observant legisaltor has realised there may be no need for legislation dealing with polygamy in the near future. The social conditioning right now is leaning heavily towards One-Man-One -Woman relationships.

    4. 0.0001% of women wouldn’t even think about getting hitched with more than one man, right? Just a question, don’t swallow me up lol…

    • WP, on point 1 I think the Marriage Bill still recognises adultery as a grounds for divorce but I’ve always had a difficult with this ground of dissolution of marriage given that even on a preponderance of probabilities, the party seeking the dissolution will literally have to adduce some sort of evidence… seems pretty tricky to me.

      on point 2, I concur. The road to hell is paved with good intentions and the introduction of this ‘potentially polygamous provision’ is intended to curb promiscuity and adulterous relations and although it looks good on paper, but in practice, it is clearly out of touch with reality. But what other options are there?

      on points 3 and 4, we are of one mind! Ofcourse 🙂

    • WP the bill provides only one ground for divorce I.e where the marriage has irretrievably broken down.Under section 74 (2) a adultery is one of the means of adducing evidence that the marriage has broken down irretrievably.The burden of proof lies with the person alleging adultery and the standard is to prove beyond reasonable,not on a preponderance of probability.
      Adultery is a very grave imputation on person’s character and may tarnish a persons reputation in the eyes of right thinking members of the society and hence calls for irrefutable evidence just like in criminal law.
      on points 3 n 4 ,i beg to differ.polygamy is not an ‘African’ thing :its global.Where its good or not is subject to personal opinion.Its not something we can come up with a universally acceptable position. ‘Civilised’ and progressive states which have outlawed it have still not been able to bar men from keeping many women (mistresses).The Tiger woods and Berusconni (dnt mind the spelling) are there in every modernized society; and come to think of it,we only came to know about it because the said gentlemen (pun intended) are public figures.So the bill ,in my opinion, has done well by expressly providing for polygamy and also giving the parties the liberty to choose whether to be in a polygamous or in a monogamous marriage by putting restrictions under Section 10 a) and (b).Which prevent persons married under monogamous marriage to contract a polygamous marriage and the vice versa

      • Well, in my view if you analyse the classic rationales for polygamy and polyandry across the world, they will not be really far from each other…

        I do not have a complaint about the Bill providing for polygamy. It is the ‘how’ bit that gets me baffled. Declaring a marriage ‘potentially polygamous’ ab initio will clearly fail since both parties have to confirm this position and close to 0% of women in this day and age will agree to such a union. This provision looks more like a barrier than a facilitator of polygamy. In reality, most marriages that end up being polygamous started off as monogamous ones and neither of the parties anticipate that at some point another woman will be thrown into the mix. Polygamy has never really been a matter of consent.

        What is the point REALLY of locking out people in monogamous marriages from converting them to polygamous ones? Looking back through past legislation since 1887, this provision to me has been used as a colonial/imperialist tool for conformity. You realise a monogamous marriage over those colonial years meant a church marriage or one at the DCs sanctioned by statute. After entering into such a union, an African could not rely on customary law to marry another woman. The better for the colonmial administration to divide and rule, this time on the socio-cultural front. That has always been the point of the monogamous/polygamous firewall all along. So why are we still providing for it now? Also notice how hard the Muslims fought not to be lumped together with traditional Africans in statutes catering for issues of personal status.

        The closest to practical the Bill can get is by staying silent on the potential polygamous-ness of a monogamous marriage. with perhaps a obligation to disclose one’s initial marital status before entering into another marriage. Ugly as it looks, this one works better than whats in that Bill.

  6. Proposals in the new Marriage Bill released by the Commission for Implementation of the Constitution seeks to introduce sweeping changes in our marriage laws;it seeks to establish a unified marriage law which will be in line with our law of succession.Currently marriage is governed by four different sets of laws which are: Marriage Act, the Hindu Marriage and Divorce Act, the Mohammedan Marriage and Divorce Registration Act, African Christian Marriage and Divorce Act and the Subordinate Court (Separation and Maintenance) Act.
    Having our laws scattered in four different Acts has the effect of having a marriage being declared null and void in the marriage Act yet recognized as valid under the law of succession. For instance, a person married under a monogamous marriage is barred from marrying another wife under a polygamous marriage. If he does, the current marriage Act does not recognize such a wife .However, under the law of succession, the other woman is recognized as a legally married wife. This creates an absurdity in our laws.
    The marriage bill seek to redress such absurdities in our laws by creating a uniform legislation which will apply across our ethnic, racial or cultural divide. Some of these changes include inter alia:
    • Prescribing the minimum age for marriage
    The bill has, under section 8, prescribed the minimum age for marriage to be 18 years.This is in conformity with the provisions of the Children’s Act and the Sexual Offences Act.This sounds a death knell to child marriages conducted under customary law for children as young as 11 years.
    Under customary law and in Islamic law, there is no minimum age for marriage. A person is ‘ripe’ for marriage after reaching puberty which can be as early as 10 years. This has exposed young girls to forced marriages. It has also given older men the opportunity to take advantage of naïve, young village girls.

    • Recognition of marriage by cohabitation
    The Bill also sets to legalize ‘come-we-stay’ arrangements. “Where it is proved that a man and woman having capacity to marry have lived together openly for at least two years in such circumstances as to have acquired the reputation of being husband and wife, there shall be a rebuttable presumption that they were duly married,” says the Bill. Thousands of people live together as married couples, especially in urban areas. If passed, this proposal will greatly assist those women and children who have in the past been disinherited on the death of their husbands and fathers because there had been no formal marriage.
    • Dispensing with the requirement for dowry
    And for prospective in-laws, the Bill provides that there will be no legal provisions for a family or anyone to demand payment of dowry. Again, what the bill is doing is merely giving effect to what many Kenyans have been doing .Due to financial hardships many young men have been unable to raise the usually bride price.
    From a human rights perspective, it is good to dispense with the requirement of bride price which tended to equate women with property capable of being owned and conveyanced, at a price.
    The proposed law defines dowry as “any payment of stock, goods, money or other property made or promised in consideration of an intended marriage.” It therefore applies both to payment of bride price, and to the dowry brought by a bride to a new husband.
    • Clarified the position of monogamous and polygamous marriage
    On polygamy, the Bill provides that if you are in a monogamous marriage, the status quo should remain. Men presently in a recognized monogamous marriage cannot convert to polygamous status. However, unmarried men have the option of entering a monogamous or polygamous marriage. At the time of marrying, the groom can indicate that the marriage could be potentially polygamous which would give him a right to get married to other women.
    No limit is placed on the number of polygamous marriages a man can enter into although the Bill states, “No married woman shall, while her marriage subsists, contract another marriage.” If the spouses agree, a polygamous marriage can be altered to a monogamous marriage. The Bill bars those already in polygamous marriages from dumping or entering a monogamous marriage with just one wife.
    This gives parties to a marriage freedom to choose, right from the onset, the kind of marriage they would like to be married under. It prevents instances where a man promises his wife that he would not marry another wife but later on ends up doing exactly that. A woman who is not ready to enter into a polygamous marriage would insist on getting marrying under a monogamous marriage.
    It also prevents strangers to the marriage,such as mistresses and concubines ,from passing for legal wives of the deceased in succession.
    • Clearly sets out the procedure
    It clearly states that marriage shall be between a man and woman. A couple interested in getting married shall give the Registrar 21 days notice and indicate whether it will be a monogamous or potentially polygamous marriage. Where the intended husband is already married, the names of existing wives should be indicated in the notice. A marriage may be contracted in civil form, under customary law, Islamic form, Hindu ceremonies or Christian rites.

    Those marrying will have to sign three marriage certificates—one for the district registrar or Kadhi, one for the husband and one for the wife. Presently, couples sign two copies, one of which is left with the registrar.
    • Duty of maintaining each other
    The bill also alters the common law duty of the Husband to maintain his wife .Under section 48, both spouses have a duty to maintain each other. This is informed by the fact that the women have over time taken over the `breadwinner role which was previously, exclusively the man’s responsibility. This is a further reflection of equality of all persons as per the constitution. The same reasoning can also explain section 49 of the bill which allow both spouses to pledge the others’ credit; again this is a departure from the common law position which provided that it is only the wife who had the right to pledge her Husbands credit.
    its worth noting that the bill expressly provides for polygamy;it also gives parties the liberty to choose whether they wish to be in a monogamous or in a polygamous marriage.So in effect,the bill is not advocating for polygamy but giving an opportunity to those who feel that polygamy is ok to do so while at the same time protecting those who are opposed to it from being enjoined as `co wives
    The Bill,under section 86, has come up with ways of ensuring that some women do not make a carreer out of marriage.In the past a Woman would marry Husband A,divorce him and get some maintenance fee, marry Husband B,divorce him and get the money ….the bill provides that the payment of maintainance fees cease upon remarriage.

  7. I would like to think this might just reduce mpango wa kando situations for fear of so called parties being associated as wife/husband at the risk of owning some of your hard earned property hehe….i now have the goal of attending a million bob wedding where its declared “i will be faithful unless a situation for an additional partner presents” haha…oh we have problems

  8. Let the bill go on and men change diapers equally, women go out as men, and also they can go for ‘business trips’ and they should cook.this equality stuff should be real equal

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