New constitution: Gains for women

• The draft constitution guarantees spouses and children equality while for the first time, mothers will be able to pass citizenship onto their children. BILLY MUIRURI finds out just what is in store for the Kenyan woman at the family level.

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.