New constitution: Gains for women

Sample this: a woman is married in church under the African Christian  and Divorce Act.  The couple gets children in the course of the marriage but after several years, the husband decides to marry another woman. This time, he pays bride price for the second woman and marries her under the African customary law.

Where does this leave the first wife and her children as far as the draft constitution is concerned? First, under the current law, it is criminal for a man married in church or at the Attorney General’s (AG) office to purport to enter into a formal marriage, under any other law.

Apart from a church and civil marriage, the law also recognises marriages under traditional (customary) law and any that is conducted under any religion (for example Islam).

Family law experts interviewed by Saturday Magazine explained that any man who has paid bride price for a second wife, without first dissolving, in court, a marriage he contracted under the African Christian and Divorce Act or the Marriage Act should be jailed.

“It is criminal to marry another woman when you are already wedded in church or at the AG’S office. It is impunity that has bred this situation.

Men who are already, or are still, married under these Acts continue to break the law with impunity because no one is taking them to task” says Nancy Barasa.

The lawyer says for the two marriages, the law observes the principle of one man, one wife. However, in a customary marriage, which is also recognised by law, a man can have several wives.

Section 42 of the draft constitution now says “parties to a marriage are entitled to equal rights at the time of the marriage, during marriage and at dissolution of the marriage”.

According to Barasa, parties to a marriage depends on the manner a marriage was conducted. “If it was a church or civil marriage, parties to the marriage would mean just the man and the one wife,’’ she says.

But if a marriage was customary and polygamous, then the parties that have equal rights are the man and all his wives.

Fida Executive director Patricia Nyaundi, Monicah Ngere of Women in Law and Development in Africa (Wildaf) and Lillian Mwaura, a veteran lawyer and Fida founder say the provisions of the draft give each spouse equality as pertains to the rights that come with the particular type of marriage that has been contracted.

“No person should come in between a couple such that one spouse is denied any right the other spouse is supposed to accord her,” says Barasa.

According to Ngere, partners also enjoy this equality in the sense that the constitution recognises a marriage to be between a man and a woman, and not between a man and two women.

“A man will not be allowed to put a wife to any disadvantage when it comes to enjoying her rights as a wife. The same applies to women whereby a man will enjoy the rights that are supposed to be accorded to him by the wife without interference from any other person,” she adds.

“The constitution is giving the principle of equality in a marriage and not really giving either wife a chance to trample on the rights of the other family,” says Mwaura.

The women rights lawyer adds that children of a first wife are equal to children of the second wife as far as parental responsibility of their father is concerned.

“They share the father therefore they are equal and the judiciary will be there to interpret how equal they should be in case of a dispute,” explains Mwaura.

The draft gives every child, whether his/her parents are married or not, the right to have his or her needs catered for by both parents equally.

“Women will not necessarily be given the responsibility of taking care of a minor, “ says Ngere.At the moment, the law is prejudiced against the man  when it comes to custody of a child and upbringing, the experts say.

According to their interpretation, it is the provision of a child’s needs that has made many women claim large amounts of monthly allowances in court from  men they have had children with. Women also count as a major gain the recognition of the family as a fundamental unit. 

Family law expert Judy Thongori says this an affirmation that the investment of time and resources that women make on their families is actually premium, even in the eyes of the state.

“We are moving towards a society that will hail the person who takes care of the family and not just the one who goes out to work,” she says. This means a man cannot claim the whole of what he has financially acquired to be his own alone, and vice versa.  

It is argued that by playing wife and home-maker, a woman contributes immensely towards the acquisition of the property, and is thus entitled to an equal share of any property acquired during a marriage.

“The era where a man buys all property and registers it in his own name thinking the woman will have no piece of it are gone with this new constitution,” says Patricia Nyaundi, Fida Kenya’s executive director.

Likewise, Ngere says, a woman will not secretly buy a property and register it in her name and deny the husband a share of it when the marriage is dissolved.

“This business of secret property acquisitions will be null and void, provided there is proof that the partners were legally married by the time the property was acquired,” she says.

Son and daughter equal

Women also score highly on the controversial issue of inheritance of matrimonial property.

The draft prohibits gender discrimination in laws, regulations, customs and practices related to inheritance of land and property.

Once this document is passed, both sons and daughters will have an equal entitlement to a parent’s inheritance, meaning the situation where only sons inherit their father’s property will no longer be tenable in law.

According to Thongori, this clause is a milestone in the quest by women for economic empowerment as they have for long remained financially dependent as their brothers prospered on property inherited from parents.

Thongori says Kenyan women own less than 10 per cent of the land despite being the majority and they form the largest labour force on land because of discrimination by laws, customs and practices related to property especially land.

This means widows at the risk of being disinherited by in-laws because of cultural prejudices will have a clause in the law to defend them against family sharks.

“Their situation is covered under the law that prohibits discrimination,” says Thongori.

Like  father, like mother.

Sample this scenario. A Kenyan woman from Thika is married to a German. They couple has two children and lives in Germany. When the mother wants to come to visit her home in Kenya, she has to leave the children behind or acquire tourist visas for them.

They are legally married but the husband cannot just fly in and visit his in-laws.  According to the current constitution, the children and the husband are not citizens and therefore needs special requirements to enter the country. It has been sad for many women.

But this will come to an end.  Article 17 of the draft constitution allows women to pass citizenship to their children, it they themselves are citizens by birth, registration or naturalization.

“It is a big gain for women. At the moment, children of a Kenyan mother and a foreign father become citizens of the father’s country. It has been discriminatory,” says lawyer Carole Ageng’o, the executive director of Tomorrow’s Child Initiative (TCI).

The draft further allows women to confer citizenship on their husbands, upon application, if the marriage has been existing for at least seven years.

According to Ageng’o, this threshold might have been included to cushion women from unscrupulous men who would want to exploit women by marrying them only for purposes of acquiring citizenship then deserting them.

This citizenship status, adds the lawyer, does not change after divorce. Similarly, a citizenship acquired before a marriage is not affected by marriage.

“ If a foreigner becomes a citizen by marrying a local woman, this man remains a Kenyan even if the relationship breaks up. In the same vein, if a foreign woman marries a Kenyan man and thus becomes Kenyan, she remains a citizen even after a divorce,” explains Ageng’o.

With provision of dual citizenship in Article 21, she adds, women further score  as they will be able to remain Kenyan citizens even after they acquire citizenship of their husband’s land.

It is not abortion, please.

Many people have faulted the new constitution claiming that it has provisions that would encourage abortion. Experts now say invoking abortion to Article 62 that provides for the right to health is incorrect.

They say the reproductive structure and function of a woman goes beyond the act of child bearing. Ageng’o says breast, ovarian and cervical cancers, their detection, prevention and management thereof fall under the broad heading of reproductive health care.

Like the abortion debate overshadowed key provisions of the reproductive health bill (2008) lawyers assert that key issues such as access to maternity hospitals, pre and post-natal care are too vital to be watered down by anti-abortion sentiments.

Nyaundi says reproductive health is not a women-only issue.

“It is also about men. This includes issues such as fertility, erectile dysfunction, and access to contraceptives,” she explains.

The clause will make more funds available even for infrastructure and medical supplies, noting that at the moment, the ministry of health, due to limited resources, is unable to budget for key supplies that affect health provision.

Nyaundi espouses on the timeliness of Article 16.

“If the nearest health centre is 20km away and there are no roads in her part of the country as is wont to be the case, what is a woman in labor supposed to do?

What if she does make it to the hospital, the poor roads notwithstanding, and it is discovered that her child is in breech position such that she requires a caesarean section operation, and there is no operating theatre at the hospital necessitating her to go to the nearest district hospital that may be a further 30 km away?

Will she survive? What of the consequences of protracted labor for whatever reason such as children born with varying levels of brain damage, or fistula to the mothers both vesico and recto vaginal?”

Her verdict: Most deaths of women in the country occur due to issues related to reproductive health. This law will greatly guarantee right to health.

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