Tuesday, November 12, 2013

MPs pass contentious Matrimonial Property Bill

PHOTO | JEFF ANGOTE Parliament buildings, Nairobi.

PHOTO | JEFF ANGOTE Parliament buildings, Nairobi.  NATION MEDIA GROUP

By JOHN NGIRACHU
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Male Members of Parliament on Tuesday evening ganged up to throw out provisions in the Matrimonial Property Bill that would have enabled divorced couples to share property equally irrespective of the contribution of each spouse.

The matter had to be put to a physical vote after the house was in deadlock on whether to have matrimonial property shared according to contribution or equally regardless of the circumstances.

With 34 women MPs in the chamber of the National Assembly, the physical vote was 87-28 in favour of the amendment proposed by Justice and Legal Affairs Committee chairman Samuel Chepkong’a. Three MPs abstained.

Angry at their male counterparts, the women MPs immediately convened a meeting.

The amendment was to the seventh clause of the Bill now headed to State House for President Uhuru Kenyatta to give his assent. (READ: Warm welcome for family assets Bill)

They also pushed through another amendment that categorised matrimonial property as “matrimonial homes, household goods and effects in those homes and any other immoveable or movable property jointly owned by both spouses.”

The heated debate on Tuesday evening was marked by an unusually high number of MPs in the House unlike other days when more technical Bills go through the Third Reading.

While couples will share property according to their contributions, the burden of liabilities - loans and debts - will be borne equally as long as they are, as suggested by the committee, “for the benefit of the marriage.”

“If there is any property to be divided, it must be in accordance with the share of each spouse’s contribution to the matrimonial property. It ensures that no one person just sits and waits for the other person,” said Mr Chepkong’a.

In the debate touched off by his amendment, there were impassioned speeches.

James Nyikal (Seme, ODM) was among MPs who argued that property ought not to be shared equally irrespective of the spouses’ contribution.

“If it is taken for granted that just being in the marriage everything will be shared equally and there’ll be no question, I don’t think that will be fair,” said Dr Nyikal.

Millie Odhiambo (Mbita, ODM) lost despite her argument that equal sharing is a constitutional principle and MPs had no business suggesting that the contribution of each partner should be determined.

“The Constitution is very clear about equal rights before, during and after dissolution of a marriage. It is not really anything we have a choice about and that is an argument that we would have had very well when making the Constitution but at this point, unless it is calling for the amendment of the Constitution, the principle is clear in the Constitution,” she said.

CONTRIBUTIONS MORE THAN FINANCIAL

Zainab Chidzuga (Kwale County, ODM) argued that women’s contributions to marriages are more than just the financial.

Mwanamke akiolewa anaweza kuwa pengine hana kazi lakini mfahamu kwamba atakuja kwake kufagia, kumchemshia bwana maji amabayo pia ni contribution, na mengineo mengi ya kuwa waeze kupata equal share, (A woman might be unemployed but remember she will clean her husband’s house, warm his bath water and many other things that may be considered a contribution that should enable her get an equal share of any matrimonial property),” she said.

Esther Murugi (Nyeri Town, TNA), said, “Whether the woman has contributed or not, she has fed the man, she has cleaned the man, she has taken care of the family. She is entitled to 50 per cent.”

When Rachel Shebesh, who was chairing the session, put the matter to the vote by acclamation, the amendment appeared to have sailed through, but the women MPs marshalled the numbers to force a physical vote.

That was where the men won 87-28.

David Ochieng (Ugenya, ODM) had the MPs return to the Bill after the Third Reading to include the provision that only property that would have been owned jointly would be shared equally.

This drew protests from Wanjiku Muhia (Nyandarua County, TNA), who said that would be unfair to women because many of them are not jointly registered as owners of property acquired by their husbands.

She was supported by Florence Kajuju (Meru County, TNA) who argued along the same lines.

“We don’t live in Utopia. We know that in our society, it is very rare for a woman to be registered as the owner of property,” she said.

The women were once again outnumbered by the men on that issue.

Mr Chepkong’a had to withdraw an amendment removing the provision to apply to the court to set aside a pre-nuptial agreement if it is determined that it was influenced by fraud, coercion or is manifestly unjust.

Ms Odhiambo led the effort that forced the withdrawal by arguing that it was important to avoid doubt so that if someone was coerced into signing an agreement, there would be recourse to the courts.

She was supported by Majority Leader Aden Duale and Mr Chepkong’a then conceded it wouldn’t have any effect on the proposed law as that provision is made elsewhere in the Bill.

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