“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.