By Ogova Ondego
Published July 30, 2017
Any one wishing to marry according to African traditions and customs in Kenya must obtain prior authorisation from the country’s Law Office with effect from August 1, 2017.
Githu Muigai, the Attorney-General of Kenya, has also notified anyone married under the African Customary system to register their unions from August 1, 2017 in line with the country’s Marriage Act of 2014 or their union will be invalid.
Although Kenya has always recognised five types of marriage–Christian, Civil, Hindu, Islamic, African Customary–registration of African Customary unions has been voluntary as the communities of the parties concerned, not the state, have recognised such marriages.
Prof Muigai says in the official Government Gazette issued on June 9, 2017 that “All parties married under African customary law are required to register their marriages” in line with Marriage (Customary Marriage) Rules of 2017 and Section 96 of the Marriage Act of 2014.
The Attorney-General says “any unregistered union will not be regarded as marriage even after completing the traditions such as paying bride price.”
Anyone wishing to “contract customary marriage from [August 1, 2017],” Muigai said under Gazette Notice Number 5345, “must obtain prior authorisation from the registrar [of marriages]” and that “Certificates will only be issued to people whose applications are successful.”
Mary Mutaaru, Acting Registrar of Marriages, says on the official government website that “The purpose of the [Marriage (Customary Marriage) Rules of 2017] is to give effect on the equality of status between all systems of marriage and provide for a process of registration of marriages through certificates issued by the Registrar of Marriages.”
She clarified in a statement dated June 12, 2017 that “The phrase ‘Prior authorization’ in the Gazette Notice refers to guidance for purposes of commencing the registration of Customary Marriages.”
Mutaaru further said that:
- Parties who are already married under customary law SHALL ONLY REGISTER THEIR MARRIAGE AND BE FURNISHED WITH A CERTIFICATE
- Parties who wish to contract Customary Marriages after the commencement date of registration, shall within three (3) months of completion of the relevant customary rites, notify the Registrar, who shall thereafter issue a certificate.
The law requires anyone in an African Customary Marriage to notify the Registrar of Marriages of their marital status after having completed the necessary rituals for their union to be registered. Both the wife and the husband must apply to the Registrar of Marriages within six months of the marriage for the marriage certificate to be issued.
Though a marriage conducted under African Customary Law is difficult, if not impossible, to dissolve, Kenya’s Marriage Act says such a union can be ended by death, a court declares the presumption of death of a spouse or annulment or divorce.
Indeed, it would be difficult for any African nation-state operating on western law models to register an African Customary Marriage if what Prof John Samuel Mbiti’s argument in his definitive African Religions and Philosophy book that in some African communities ‘marriage’ is “complete only when the first child is born, or when all the marriage presents have been paid, or even when one’s children are married.”
A complex affair with religious, economic, political and social significance that brings together the living, the dead and the yet-to-be-born, a customary African marriage is not an event but a process.
But just how complex is African Customary Marriage whose lack of understanding would be an obstacle to understanding the African worldview with regard to practices such as brideprice, polygyny, arranged marriages or the inheritance of wives or husbands?
The Kenya Law Resource Center tries to explain this complexity by identifying and defining eight forms of marriage found in Kenya under African Customary Law:
- Monogamy: a marriage between a man and a woman
- Polygyny or polygamy: a man can marry many women at different times
- Leviratic Marriage: a relative or brother of a deceased husband assumes the role of the deceased. Any children born out of this union are regarded as children of the deceased
- Sororate Union: The family of a deceased wife may give her younger sister to the widower as replacement and the younger sister assumes the role of the deceased wife
- Widow Inheritance: A brother of a deceased husband inherits his widow as his own wife. Any children born out of that union are regarded as his own and not those of the deceased
- Woman to Woman marriage: A barren wife ‘ marries’ another woman for the sole purpose of having children and those children become the children of the barren woman who is the husband in the relation. This marriage can take place whether the husband of the barren woman is alive or dead. If the husband is alive the other woman is allowed to have sexual relations with the husband for the purpose of having children. Any children out of this relationship will be regarded as the children of the barren woman. Where the husband is dead she must select a man from the husband’s family or leave the decision to the woman to select whom she wants to have children with
- Forcible Marriage: Arises in a family where there are only daughters and the last daughter is not entitled to get married. She remains at home to beget children especially male children with a man of her choice and these children belong to her father’s family
- Child Marriage: Here, children are betrothed to each other when they are still young and dowry is paid when they are still young and on reaching the age of maturity the bride is then taken to her husband’s home.
A union conducted under the African Customary Law is not just a complex but also costly affair; in fact, it is much more expensive than any of the other four types of marriages recognised in Kenya because of the strict conditions that must be met for it to be recognised by the communities as being complete and therefore official.
So just could have prompted the Kenyan state to try and simplify the matter and ended up trying to put it at the level of its ‘foreign’ Christian, Civil, Hindu, Islamic—counterparts?
It appears the Government of Kenya is simply interested in the Sh2600 (about US$26) it shall collected for registering and issuing a certificate per union. The state shall collect Sh600 for the notice of such marriage and Sh2000 for the certificate within Kenya and Sh10000 (US$100) for Kenyans living abroad if they register their union with the embassies of the country.
Why do we say this?
Because the former British colony still recognises the payment of bride price, the potential of the marriage to be polygynous, proof of the marrying couples to have met the customary requirements completed, declaration by the parties concerned that necessary customary requirements have been undertaken and signatures or personal marks of two adult witnesses who played crucial cultural roles in the marriage for the state to register and issue a ‘marriage certificate’ after the completion of the ‘process’. It is interesting to note that the state does not have to give prior permission for marriage to take place.
In an article published in jurisnooks.com website, Jackline Wanjiku explains that Kenya’s Marriage Act of 2014 is “a culmination of several years of reforms” and that it “consolidates various pieces of legislation governing the various types of statutory marriages.”
She says the law was aimed at minimising “the complexity, unpredictability, and inefficiency previously occasioned by the multiplicity of laws relating to the institution of marriage.”
One may wonder why Kenya would be trying to complicate African Customary Mariage further instead of seeking to formalise cohabitation that is also known as ‘Come-We-Stay’ and that is most common though not recognised as ‘marriage’ in this East African country. In this arrangement, a man and a woman live together as husband and wife and even have children without being married.
Come-We-Stay is a most risky arrangement as it doesn’t give legal protection–maintenance, inheritance–to the parties, especially the female, in it should it end.
Burundi, in an attempt “to moralise society”, has ordered such couples in come-we-stay relationships to either formalise their union by the end of 2017 or face yet-to-be-determined legal consequences.
The move, the government says, is aimed at combating population explosion and protecting school girls and women from men who stay footloose, moving from one available woman to another in the French-speaking central African country.
Terence Ntahiraja, spokesman for the Interior ministry was quoted by AFP news agency as having said that ‘church and state-sanctioned weddings were the solution to the country’s population explosion – and a patriotic duty’.