Sometimes, media coverage and reporting muddies
the waters. Take the case of the Marriage Bill — now passed, awaiting
presidential consent.
Much was made of Act’s supposed legalisation of
polygamy — as though polygamy was not already legal and as though its
legal standing was what the Kenyan women’s movement was concerned about.
But let us be clear about both the facts and the
background. Polygamy was already legal. Under a plethora of laws,
starting with the Marriage Act, Cap 150, number 30 of...1902!
What the Marriage Bill was seeking to do was to
consolidate all the legislation related to marriage since — and bring it
in line with both the Constitution of Kenya, 2010 and the Protocol to
the African Charter on Human and Peoples’ Rights on the Rights of Women
in Africa.
The Kenyan women’s movement wanted the Marriage
Bill to give meaning to: Equality within marriage, free consent, and
protection of the rights of women from and in polygamous marriages.
The notion of equality within marriages was
already undermined by the gazetting of the Matrimonial Property Act in
January. The Act allows for the division of property upon dissolution
according to the parties’ contributions.
However, the Matrimonial Property Act made clear
that while women cannot expect to share the spoils equally, they will be
expected to share the pains. In this case, debts accrued by male
parties to the marriage.
The Marriage Bill, in its earlier incarnation, was
meant to serve as a “buyer beware” for women by clearly articulating
that the only marriages women can expect to be monogamous in the
long-term are civil, Christian and Hindu marriages. Customary and
Islamic marriage regimes are always “potentially polygamous.”
The Marriage Bill, in its earlier incarnation, was
also meant to make men state their intentions — and for women to be
able to assess those intentions by checking out the registry of
marriages to ensure no customary or Islamic marriage was lurking in the
background and for women to be able to say that our “free consent” had
not been sought or given to a polygamous situation.
Free consent has to be both “informed consent” and
consent obtained non-coercively – no lying or omitting fundamental
information.
The (male) parliamentarians removed the
requirement for consultation and consent. They compounded the problems
of the Matrimonial Property Act by explicitly stating women are only
entitled to 30 per cent of matrimonial property upon dissolution or
death.
Few women would get married — under any regime — anticipating the need to protect ourselves against “potential polygamy.”
Few would consciously think about our monetised
and non-monetised contributions to property accumulation and how those
might be later assessed and divided should the marriage be dissolved.
Nobody gets married anticipating the marriage’s
dissolution and planning for the same. The aim was to give women who
find ourselves in such situations a legal leg to stand upon.
That leg has been snatched away
unconstitutionally, against regional human rights norms on equality,
free consent, and protections within polygamous marriages. The
Marriage Bill should not be assented to
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