The Proposed Marriage Bill

Violet Atieno is a widow and a mother of six. Widowed at 33 after her husband was gunned down by unknown persons in 2005, the life of her family has been turned in to a nightmare. Immediately after the burial of her spouse, her husband’s relatives came knocking, took away everything that they had build together with her husband and left the family without any source of income. With six kids to feed, clothe, educate and give them shelter, among other basic needs, life has not been easy for her, especially without any professional job training. Her family was forced to relocate to a single-roomed, tin-walled shanty in one of Nairobi’s fast growing Kiambiu slum in Eastlands. All land and material property that they had acquired with her husband were taken away from her by her in-laws who claimed it belonged to ‘their son.’ And no thought was given to the welfare of the six children that Violet and her husband had sired.

Violet represents so many African women who bear the brunt of oppressive patriarchal systems when it comes to family property ownership in a marriage. In most cases, women (wives) are declared persona non granta to any family property once the man dies. In cases of separation, the woman is never recognized as having contributed to any wealth creation in the home. We have had cases where once the husband dies; the woman is forced out of her home, sometimes together with her kids by greedy in-laws who reap where they have not sown. Hence under the patriarchal system, the woman has no right over her husband’s property, and in extreme cases, neither the kids do.

But the recent tabling of the Marriage Bill, the Matrimonial Property Bill and the Family Protection Bill before the Cabinet by Kenya’s Gender Affairs minister Esther Murugi might be a glimmer of hope for suffering Kenyan women like Violet. The bills, which were first introduced in parliament in 2007, will mark the first time since 1962 for marriage laws to be revised. If passed in to law, it will be more to the advantage of women. Although it has drawn mixed reactions from different quarters, including religious organizations and civil societies, the bill might be a welcome move towards women empowerment and gender equality.

The Proposed Bill at a Glance
The bill recognizes a woman’s contribution towards creation of family wealth and states that in case of separation, both the husband and wife are entitled to a 50-50 share of family property. That matrimonial property and inheritance rights of either spouse or children are to be safeguarded. This means that any family property belongs to both spouses with their children and greedy long arms of in-laws from both sides have no right to it. Women like Violet and her children will not be subjected to any kind of suffering. Traditionally, only men had absolute control over this, irrespective of whether she is a career woman and had contributed to the acquisition of property.

The bill also proposes the abolishment of dowry (bride price) payment from the man’s parents. In traditional African marriages, the man is required to pay a certain amount in form of livestock or any other form, which varies from one community to the other, as appreciation to the bride’s parents. But many male spouses have used this to oppress women and force them in to total submission because they ‘paid’ for them. In most cases, once a man is through with the payment, he starts treating the spouse as one of his property. This is where domestic anarchy sets in, with the man having acquired all rights to barter the wife.

In Kenya, just like many African countries, girls are married off at early ages with or without their consent. In such cases, marriage is the affair of the family and love has no place. Some communities in Sudan for instance marry off their daughters to potential men who make bids to give more dowry. And once dowry is given, the woman is expected to be totally submissive to the husband and clansmen. And any upset to this setting may make the man demand for his dowry back! Hence the dowry question has been playing a central role in ‘keeping the woman where she belongs’ as many may put it. If the bill is enacted in to law, any arranged marriages for under-aged girls are an offence that is answerable in the court of law. In Kenya, one is considered an adult at the age of 18. This means that any marriage arrangement for children under the age of 18 years is a criminal offence.

This clause takes care of girls who are denied the chance of attending school and who are married off mostly to older men. “At last we will have a law that protects the rights of vulnerable girls who fall prey of their parents,” says Njoki Ndung’u, a lawyer, gender activist and children’s rights architect. She adds that with such a law, no one will take advantage of customary laws to oppress young girls. In samburu community in Kenya for instance, the belief is that if a girl gains a lot of education, she will scare away potential bidders for marriage and so the earlier the arrangements, the higher the dowry.

Polygamous marriages will also be recognized under this law. Polygamy is a marriage arrangement where a man marries several wives. Under the African customary law, men are allowed to marry as many wives as they please. In fact, a man’s wealth was measured in the number of wives that he has married. This was so because women were also counted as part of the man’s material property. For instance, King Mswati of Swaziland now has 14 wives, which are chosen at an annual reed dance. Once chosen, one is not expected to object because it is under his law. But the bill proposes that the man will only choose to be polygamous with the consent of his wife in writing. If the wife says no, then it will be an offence for the man to take on another wife. Many women have lauded this, saying it will give them a chance to earn respect and decency in a marriage. It will be a great turn around to let women participate in something that was entirely left to men. A great percentage of women who are in polygamous marriages are not happy and live in constant fear. They only come to learn about ‘the other family’ later.
Men who ‘use and dump’ under the famous Come-We-Stay without legalizing the relationship are not spared either. Only about 50% of cohabiting couples end up in marriage. Under this law, if a couple stay together for more than three months, then the arrangement is deemed as a permanent marriage. Under present circumstances, partners put up together for years, even have kids but the man can choose to end the arrangement anytime he feels like, on grounds that he was not ‘married,’ but simply cohabiting.

Both spouses will have power and control over family issues under this law. There is even a clause that says that a man can walk to court to report neglect by the wife, and vice versa. This means that the spouses are mutually dependent on each other. In traditional set ups, the man is always the head of the household, the decision-maker, the provider. The woman in turn should be subordinate, obedient and is expected to be provided for. She is not to question anything that the man does and all her financial, material and emotional needs are to be taken care of. “Women are like big children and they cannot do without our care,” said Nairobi resident who is utterly opposed to the bill. Under the Muslim law for instance, the Quran allows a man to marry as many wives as he can so long as he is able to provide everything for all of them. But if this bill is passed, things will be different. We will have an empowered, independent woman who can also take care of the financial needs of her family without raising any eyebrows.

Mixed Reactions and Loopholes

Many Kenyans, especially from the women quarters have lauded the proposals in the bill, saying it is long overdue. The Kenya National Human Rights Commission, through the Vice chairman Hassan Omar, have endorsed the bill saying marital disputes will be reduced. Some churches like the Catholic Church and Anglican Church of Kenya have not taken their stand and are warning of conflicting marital beliefs and values.

The Muslim society has however vowed to oppose the bill on grounds that some clauses are in conflict with the Muslim laws. Through the Supreme Council of Kenya Muslims (Supkem), they have singled out some ‘offensive and un-Islamic’ clauses that are against the Quran. Their law for example allows polygamy as long as the man is able to provide for all the wives. Under the Muslim law, the woman is to remain subordinate at all costs and never to question the man’s decision. Divorce is never a household term under their law because of the sanctity of a marriage institution.

The bill does not provide any laws governing homosexual marriage arrangements. Marriage under this bill is defined as the voluntary union of a man and a woman intended to last for their life time. It only recognizes heterosexual relationships. This has again drawn mixed reactions, including followers of the Anglican Church which are not opposed to homosexuals. Many argue that the bill is short of protecting the rights to sexual orientations.
Legalizing ‘Come-We-Stay’ arrangements is also bound to promote promiscuity among spouses. Since statistics show that men are more likely to cheat in marriage than women, the married woman will be subjected to the HIV infections. Analysts are also arguing that the bill will not work for unemployed women who look up to their husbands to provide for their families. That most clauses only work for the modern career woman and is bound to erode the sanctity of marriage.
What next?
Eyes will be on parliament as it resumes its sessions this November to either pass or reject this bill. The chances for it to be made in to law is grim, given that only 22 out of 224 members of parliament are women… a mere 9.8%. But if it is passed, it will be for the best interest of the vulnerable groups…women and children. It will minimize cases of suffering like what Violet and her children are going through. It will bring about change that many past generations have wished for. The die is cast, we are only waiting for the verdict.