Kenya Passes Controversial Polygamy Law

Amid heated arguments, Kenyan president Uhuru Kenyatta has approved a new measure legalising polygamy.

The law applies only to marriages conducted under customary law, rather at state registries, but it is estimated that eight of ten marriages take the traditional form.

“Marriage is the voluntary union of a man and a woman, whether in a monogamous or polygamous union,” a statement from the president’s office read.

The bill was passed by parliament last month in a vote that saw female legislators storm out in protest, and the president signed the new bill into law on April 29.

Opponents of the bill had demanded that men should at least be required to seek the consent of an existing wife before marrying for a second or third time. Although this is a traditional convention, male legislators voted to drop this clause from the final version.

After the bill was passed, lawmaker Soipan Tuya said she was particularly outraged that this clause had been removed.

“At the end of the day, if you are the man of the house, and you choose to bring in another party – and there may be two or three – I think you should be man enough to agree that your wife and family should know,” she said.

While no formal studies have been carried out, it is thought that up to 80 per cent of Kenya’s population, practice customary forms of marriage, mainly in rural areas and including but not solely among Muslims.

Only a minority opt for civil marriage or Christian church weddings. The law still prescribes monogamous marriages.

Human rights advocates have criticised the new legislation, which has been under discussion since 2007.

George Kegoro, executive director of the Kenyan arm of the International Commission of Jurists, argues that the bill runs counter to the spirit of a treaty the government has ratified.

Although the Maputo Protocol does not specifically prohibit polygamy, it states that monogamy is “the preferred form of marriage”. The document – formally, the Protocol on the Rights of Women in Africa, under the African Charter on Human and Peoples’ Rights – guarantees comprehensive rights to women including social and political equality. It states that countries that ratify the document “shall ensure that women and men enjoy equal rights and are regarded as equal partners in marriage”.

Kegoro concludes that “although wanting to correct certain wrongs in the marriage institution, [parliament] has through the bill created obvious problems.

Nancy Baraza, a former deputy chief justice of Kenya, was among those who drafted the original version of the polygamy bill, but opposes the revision that dropped the need to seek consent from an existing wife.

“This goes against the human rights basics because it shocks and depresses the wife to know that another woman has joined her house without the slightest knowledge. This is torture,” Baraza said.

Baraza said the law should have reflected the high status traditionally accorded to a first wife.

“What we were trying to do is uphold the dignity of the wife by [inserting] that provision [on consent],” Baraza said. “But the way it was being debated in parliament just shows our attitude towards women as a society.”

Some argue the new law will open the floodgates for polygamous relationships and undermine the stability of the basic family unit.

Lenah Kinyua, a hairdresser in Nairobi, is angry that the new law recognises polygamy as it will encourage men to take more wives.

“Men want more women so they can have more sex,” she told IWPR. “In these tough economic times, men should focus on marrying one woman and being contented with her. Bringing in a second wife spoils the whole marriage setting plus the good relationship shared initially by the couple.”

Others see the law as a blow for sexual equality, which has seen significant progress in recent years.

An editorial in the Daily Nation last month said that “the idea that men can marry as many wives as they wish does not sit well with the expectations of a modern society like ours”.

Mary Wangare, who is in her eighties and lives in the town of Othaya in central Kenya, thinks people are making too much fuss. In her community, it is the norm rather than the exception for men to have multiple wives.

“Among the traditional Kikuyu, it’s the wife who looks for a second wife for her husband,” Wangare told IWPR. “This is because it is a woman’s duty to till land while men [traditionally] herd cattle and go for war and raids. When the task of tilling land becomes too much, a Kikuyu woman looks for a co-wife to help her till the land.”

The new law does include a number of provisions that have been welcomed as positive steps forward. For example, it requires all marriages to be legally registered, giving wives and children a greater level of protection as customary marriages were not previously recognised in law.

The bill also attempts to harmonise different marriage practices within a single legislative framework, and provides minimum standards for what constitutes customary marriage, something that had never been legally defined in the past.

It also sets the age of marriage consent at 18, thereby outlawing marriage between minors which is common in rural parts of Kenya. International organisations working in Kenya report frequent cases of girls as young as 14 being married off in exchange for payment of the so-called “bride price”.

Despite earlier proposals that would have seen the “bride price” itself banned, the new law contains no such provision.

Lilian Ochieng is a reporter for ReportingKenya.net and the Daily Nation in Nairobi.

This article was produced as part of a media development programme by IWPR and Wayamo Communication Foundation in partnership with Nation Media.