Although Justice and Legal Affairs Committee chairman Samuel Chepkong’a has emerged as the face of what some would call “rogue polygamy” from his statement on Thursday evening, his history in driving debate on the Marriage Bill paints a different picture.
When he first introduced the Marriage Bill to MPs one afternoon last February, he started by showing and telling his colleagues how far Kenya has come as far as protecting the family goes.
Before July 2013, when the bill was published and taken to the National Assembly, the youngest piece of legislation regarding the family, the Hindu Marriage and Divorce Act, had been enacted in 1960.
The oldest was the Marriage Act, enacted in 1902, way before any Kenyan alive today with official documents as proof was born.
“It is, in fact, shameful that we have continued to visit our marriages with colonial laws and have them binding on our marriages and yet they had little input from the indigenous Africans living in this country,” Mr Chepkong’a said.
From Mr Chepkong’a’s explanation, the preparation of some of these seven Acts was even tinged with racism and a decidedly poor understanding of how African society operates.
When they realised that dowry is paid in African marriages for example, the colonial courts decided that these did not fit their definitions of marriage but were more like wife purchase.
They could thus not be accommodated in the Marriage Act and so in 1931, the African Christian Marriage and Divorce Act was enacted.
Similar ideas were behind the preparation and enactment of the other Acts; the Matrimonial Causes Act, Subordinate Court (Separation and Maintenance) Act, Mohammedan Marriage and Divorce Registration Act, Mohammedan Marriage, Divorce and Succession Act and the Hindu Marriage and Divorce Act.
These disparate pieces of legislation have made the management of marriage and divorce a rather tedious process and “have caused a number of difficulties in terms of implementation.”
“Multiplicity has been very difficult in terms of legal practise in this country. You have to search from the various Acts of Parliament; what law applies to your circumstance, when instructed by a client,” Mr Chepkong’a would say.
As stated in its memorandum, “The amendment and consolidation of the marriage laws is important in order to minimise the complexity, unpredictability and inefficiency occasioned by the current multiplicity of laws on the subject.”
With precedents established by judges over the years, he said, it had over time become difficult for a man or woman married under Christian or Hindu law to know at what point customary law would begin to apply to them.
By categorising marriages and outlining how each type is celebrated and annulled and whether it allows a man to marry many wives, family lawyers argued, it makes it easy for a person to choose what category would fit them best.
“One of the key strengths of the Bill is to allow people to choose what law they want to get married in ,” Judy Thongori, a family lawyer who has followed and pushed for the enactment of the new law would tell journalists in August 2013.
If assented to, the law will make it easy to make the decision to get married under customary law, for example, with the full knowledge that it is potentially polygamous.
“So, as a woman if you celebrate your marriage under the customary law, you expect another wife to come into the house without notice being given to you,” said Mr Chepkong’a.
“The boundaries are clear; crystal clear as opposed to today when the lines have become so thin that it is always not clear what the boundaries are from one to the other,” said Ms Thongori.
By combining all types of marriages under one law, the Bill would also make the provisions more accessible for lawyers and judges as well as litigants.
The Bill is also intended to implement Article 45 of the Constitution, which describes the family as the “natural and fundamental unit of society and the necessary basis of social order.”
The Constitution also requires Parliament to enact legislation that recognises marriages “concluded under any tradition, or system of religious, personal or family law.”
“As a family practitioner, when a conflict manifests, my concern always, is how does it affect the children?” Ms Thongori said, adding that when the parents’ relationship runs into strife, they forget their primary responsibility and neglect the children.
Marriage Bill is therefore good
The Marriage Bill is therefore good because it creates an easy and accessible way to deal with conflicts, making the protection of a child’s future easier.
It provides for the court to order a person to pay maintenance to a spouse of former spouse if the person has refused to do so, deserted them, during the course of divorce proceedings, after granting the decree of separation or divorce and after making a decree of presumption of death.
For Peter Kaluma (Homa Bay Town, MP) who has also handled family cases, the new law would ease matters for lawyers and litigants because it would set a clear path in terms of benefits and maintenance, meaning a person intent on getting married goes about it the proper way and gets it registered.
“What pleases more from this Bill is that, for once, all forms of marriages are registrable. Currently, only people who wed in church and the people who marry within the context of the civil marriages in the Attorney-General’s Chambers have a Marriage Certificate. For once we are saying that every form of marriage, for as long as you transact it within the parameters of law that are defined in this Bill, will qualify for marriage,” he said in Parliament.
It was with all these in mind that Ms Thongori said that despite the walkouts by the women and the fact that some things were changed in the Bill, it marks an important step forward.
“In independent Kenya, we have never sat to discuss our marriages. We finally have something that we have asked for for many years because this started in 2007. We can improve it in time but let’s first celebrate the fact that we even got there. I want to actually congratulate the MPs because there have been many Houses before that didn’t do anything,” she said.