The Controversial Unification of Kenyan Marriage Laws Under Marriage Bill 2012

By: Alida Miranda-Wolff

This blog series focuses on the ways in which Sub-Saharan African civil and customary marriage laws interact with one another in the context of changing legal frameworks.

Photo Credit: Katryce Lassle

Photo Credit: Katryce Lassle

Kenya’s cabinet has recently approved the Marriage Bill 2012, a proposed law that legalizes polygamy, bans bride-price payments, and recognizes “come-we-stay” relationships as marriages. Although parliament has yet to pass the law, it has already received mixed reviews from Kenyans who question the effectiveness of consolidating customary and civil marriage laws into one unified code.

Among the most controversial of the bill’s provisions is the proposed ban on bride-price payments, which are paid by the groom or his family to the bride’s parents upon their marriage. In Kenya, bride-price payments are usually made in cows, and customary law currently dictates that marriage is only legal if these payments are made. While this kind of customary law still prevails throughout Africa, including South Sudan, the Kenyan cabinet aims to harmonize the nation’s marriage laws, regardless of ethnic, non-country specific customs.

Although the bill threatens some traditional marriage practices like bride-price payments, it also firmly upholds others like polygamy. In fact, it defines marriage as “a monogamous or polygamous union,” recognizing polygamy universally, as opposed to the current law, which limits its recognition to Islamic and customary marriages. By legalizing polygamy, the Kenyan government intends to unite civil law and customary law under one uniform code. However, this feat may prove problematic, considering that Kenya hosts 40 ethnic groups within its borders, many of whom pride themselves upon their unique marriage customs. Moreover, the legalization of polygamy promotes a form of gender inequality because polyandry, marriage between one woman and multiple husbands, remains illegal.

Unlike polygamy, “come-we-stay” marriages do not appear to have any basis in current customary laws. The “come-we-stay” provision stipulates that couples who live together for six months or more will be considered legally married. Consequently, the bill’s passage may affect co-habitation in Kenya, especially for couples who are averse to being forced into marriage by the government. The National Council of Churches has condemned the “come-we-stay” provision for precisely this reason. Its officials maintain that by forcing marriages upon couples instead of allowing them to marry of their own volition, the bill will promote unstable marriages that lead to divorce and family disunity.

While the Marriage Bill 2012 offers protection for civil, traditional, and religious forms of marriages and even recognizes new forms of “irregular” marriages like “come-we-stay” unions, it does not legalize all forms of marriage. In keeping with Kenyan laws banning homosexual acts, the bill does not offer any protection or recognition for same-sex relationships, defining marriage as “the voluntary union of an adult man and adult woman.” The bill also forbids marriage between blood relatives, step-parents, and the former spouses of one’s immediate relatives.

Alida Miranda-Wolff is a third-year in the College double-majoring in English and Law, Letters, and Society.