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Kenya: Parliament Passes Comprehensive Marriage Bill, Changes Process for Contracting Customary Marriages

(Mar. 28, 2014) On March 20, 2014, the 349-member lower chamber of the National Assembly (Kenya’s parliament) passed the Marriage Bill No. 13 of 2013. Among other objectives, the purpose of the Bill is to consolidate the seven different marriage laws in the country. (Kenya Parliament Passes Polygamy Measure, VOICE OF AMERICA (Mar. 21, 2014).) If enacted, the legislation will repeal and replace the following existing laws:

Because it does not concern county government matters, the legislation does not need approval from the upper chamber of the National Assembly, the Senate. (Constitution of Kenya, 2010, §§ 109-112, 122, KENYA LAW REPORTS.) However, it must be signed by the President or passed again by the National Assembly with the support of at least two-thirds of its members before it can become law. (Id. § 115.)

General Provisions

One of the most notable changes introduced by the legislation is a uniform minimum marriage age. A provision in the General Provisions part of the legislation, which is applicable to all forms of marriage including Islamic and customary marriages, imposes a mandatory minimum marriage age of 18 years for both parties to a marriage. (Marriage Bill, § 4.) An attempt during the parliamentary debates to amend this language and carve out an exception for Islamic marriages failed. (National Assembly Report, PARLIAMENTARY DEBATES, 30-32 (Mar. 20, 2014), National Assembly of Kenya website.) The legislation further states that contracting a marriage with a person below the minimum age of marriage renders the marriage void. (Marriage Bill, § 11.) Violation of this requirement is an offense punishable on conviction by up to five years in prison and/or a fine of up to KES1 million (about US$11,540). (Id. § 87.)

Another of the General Provisions expressly prohibits proxy marriages. It states that absence of either party from the marriage ceremonies renders the marriage void. (Id. § 11.)

Customary Marriages

If enacted in its current form, it appears that the legislation will introduce major changes in the manner in which customary marriages are formed. Until now, the application of customary laws and practices, with the exception of the repugnancy test imposed under the Judicature Act (§ 3 (as amended through 2007)), had by and large remained free of any formal legal restrictions. (For a discussion of the repugnancy test in the context of customary law, see Law Library of Congress, Legal Research Guide: Customary Law in Africa (last visited Mar. 25, 2014).)

In addition to invalidating all customary laws permitting marriage of individuals under the age of 18, the legislation imposes a new registration requirement that must be met in addition to the procedures for contracting a customary marriage under the rites of different ethnic groups. Aside from requiring that all the procedural customary rites for contracting a valid customary marriage be met, the legislation makes registration of customary marriages through the personal appearance of both parties before the Registrar an essential requirement for contracting a valid customary marriage. It states that when two persons enter into a customary marriage contract, “… for their union to be recognized as a marriage under the customary law of any of the parties both shall apply to the Registrar within six months of their marriage for a certificate and both shall appear in person before the Registrar to be issued the certificate of marriage.” (Marriage Bill, § 54.) Failure to register a customary marriage will render it voidable. (Id. § 12.)

However, the legislation does little to minimize the importance of dowry (marriage consideration) in contracting customary marriages. It states, “[w]here the payment of dowry is required to prove a marriage under customary law, the payment of a token amount shall be sufficient to prove customary marriage.” (Id. § 42.) This does not deviate from existing customary practices; in many communities in Kenya, including the Kikuyu, Kamba, and Luhya, although payment of dowry is key to contracting a valid marriage, partial payment is sufficient. (EUGENE COTRAN, RESTATEMENT OF AFRICAN LAW: KENYA: 1 THE LAW OF MARRIAGE AND DIVORCE 15, 27, 39, 52 (1968).)

Moreover, the duty of paying dowry is often a permanent debt of the responsible family. For example, among the Kikuyu the father of the groom is duty-bound to pay the dowry (ruracio) for his son’s first wife. (Id. at 14) This debt follows him throughout his life and automatically transfers to heirs upon his death. (Id.) In addition, there are a number of instances, including divorce, in which dowry is refundable, which is said to, in many instances, force women to be trapped in bad marriages. (Id. at 15, 20-22; Mary Kimani, Taking on Violence Against Women in Africa, AFRICA RENEWAL (July 2007), at 4.) The legislation does not change these practices.

Most Controversial Provision

Of the 98 provisions in the legislation, the provision on polygamy, particularly with regard to the question of the right of existing customary marriage wives to veto and/or be consulted about subsequent marriages, appears to have garnered the most attention. (Kenya Parliament Passes Polygamy Law, AL JAZEERA (Mar. 21, 2014); Kenya Polygamy Law; Female MPs Storm Out of Parliament, BBC AFRICA (Mar. 21, 2014).) A previous draft of the legislation required that before a man who is married under customary law can take a second or more wives, he must notify the Registrar that the existing wife/wives had been notified of the impending marriage. (Marriage Bill, § 44.) The draft further required that the information provided to the Registrar include whether
the existing wife/wives approve or disapprove of the intended marriage and the reasons why. (Id.) However, both these requirements were eliminated from the final version of the legislation that was eventually adopted by the National Assembly. (National Assembly Report, supra.)