Effect of post-colonial law on customary recognition of woman-to-woman marriage

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The Marriage Act 2014

The Marriage Act of 2014107 was a contentious piece of legislation. It presented many gains for both men and women, as had been negotiated during the constitutional review process. Some of the provisions were clear demarcations of the presentation of women and the provisions on marriage in customary law. The Act was signed into law in March 2014, ‘despite protests from female lawmakers who angrily stormed out of the late-night session (of parliament) at the time’.108 There were various provisions in the marriage law that had already been introduced in the various drafts that preceded it. It also reflected the provisions of complementary legislation such as the Children’s Act with regard to the age of majority. The law reflected the definition of a child as any individual who was under the age of eighteen as had been provided for in the Children’s Act.109
The definition of marriage in the Marriage Act110 is derived from the Constitution of Kenya 2010, which provides that it is a voluntary union between a man and a woman.111 On its face, this provision disallows the recognition of any other type of marriage. The law further espouses that both parties have equal rights in marriage, reflecting once again the Constitution of Kenya 2010, which enshrines the principle of equality. The legislation provides that all marriages must have two witnesses present,112 a fact that was introduced in the application of customary law in matters of succession during the colonial period. In keeping with its inclusive nature, it provides for the registration of all marriages whether Christian, Hindu, Islamic, civil or customary.113 On the contentious provisions of polygamy, the Marriage Act recognised that Islamic and customary law marriages are potentially polygamous, a provision presented in the earlier Bills and presents that civil, and Christian and Hindu marriages are monogamous. It provides exclusively for civil marriages in section 24, customary marriages in section 43, Hindu marriages section 46 and 47 and Islamic marriages in sections 48 and 49. It provides for the recognition of foreign marriages, but this is limited to Christian marriages. It also provides the circumstances under which a marriage may be considered void or voidable as well as the dissolution of marriage. It provides for the maintenance of the spouse upon the dissolution of the marriage as well as the custody and maintenance of children.
On the provisions of customary law, the Act provides that recognition of customary law is based on the customs of one or both parties.114 This is an explicit provision and binds the court to the recognition of customary marriages.115 It provides for the payment of a dowry where the customs require it and concede that a token amount is a sufficient proof of marriage.
This concession stems from various customs such as those of the Kikuyu people, where the paying of dowry was intended to be a long drawn out process, which took place in multiple ceremonies over the years, to ensure that the girl and the families have an opportunity to meet every couple of years. The Marriage Act state that the parties are required to inform the Registrar within three months of completing the requisite stages to secure the marriage. There is a necessity to state the custom that was applied while conducting the customary marriage. Upon the dissolution of the marriage, the parties are required to file a report in court. The dissolution is granted once the parties have gone through the requisite customs of dissolution.

Judicial determinations before 2010

Any challenges to woman-to-woman marriages after colonization were deferred to the Native courts and subsequently the Kenyan courts where English statute law was applied. The initial challenge did not have to do with the recognition of these marriages, but rather to do with the dissolution and issues of succession. However, with the introduction of the repugnancy clause in the Judicature Act, some of the judgments dealt with the challenge that marriage was ideally between a man and a woman, although this did not deter the court from deciding on these marriages. The focus dwelled predominantly on the nature of the marriage and whether it achieved the threshold that defined it as a customary marriage. Other considerations included the rights of the female husband who was considered as the head of the household and family as well as issues of divorce and succession. The development of jurisprudence evolved from general disregard for African customary law in R v Amkeyo to a consideration of the marriage practices and their impact in determining legal validity of African marriages.

Judicial determinations after 2010

The institution of woman-to-woman marriage has been affirmed after the adoption of the 2010 Constitution despite the provisions of Article 45(2) of the Constitution of Kenya 2010, which restricts marriage to a union between for a man and a woman. The courts seemed to interpret the provision as not excluding the recognition of woman-to-woman marriage by considering the spirit of the Constitution. It is evident that upon the reading of the document, its intention is to recognise and respect the customs of the people of Kenya. It also emphasises the respect for basic human rights principles such as inclusion and equality as some of the important tenets of the people of Kenya. The decisions made subsequent to the passing of the Constitution of Kenya 2010, are a reflection of the court’s intention to legally validate the institution of womanto- woman marriage as an important customary practice.

Customary law

Customary law has been difficult to qualify as a source of law due to differing views about its viability as a form of law. It is established to be a source of law in Kenya by its inclusion in the Constitution as well as other laws as a source of law. It reflects the traditions, beliefs and the will of the Kenyan people from the pre-colonial period up to the present day. Customary law has more commonly been referred to as an indigenous law signifying its apparent departure from the more formally recognised systems of law. It is referred to thus because the law is viewed to be more legitimate if it is written. Where it is unwritten, the legitimacy of customary law becomes difficult to qualify. The nature of African law has been discussed extensively in various texts but to answer the contentious question of the legitimacy of customary law, it is necessary to deconstruct the source of its ‘illegitimacy’. The nature of customary law has been influenced by four different schools of thought. The first is that African customs were paganist and uncivilised and therefore without a recognisable rule or order which could be made into law from these customs. This was a view adopted by the missionaries as part of their civilising mission to Africa and was particularly evident in the negative representation of African culture and religion in literary works by anthropologists such as Freeman, Bowen and Stone, Baudin and Burton and Hutchinson. The second is that the native customs conflicted with the Western ethical conceptions and that this inevitably required sublimation to the more evolved and superior system of Western administration and justice The concept of ‘sublimation of native custom’, was expressed by a colonial district officer in Senegal as a means to raise the African to a ‘higher standard’. The third is the anthropological perception that custom and traditional practices were mere ‘ceremonial practices’ that did not form the essentials of the law. Customs and practices were not deemed to have a logical historical development that was necessary for the formulation of a system of law. Although anthropologists recognised that the African societies had highly developed political systems, African people were still perceived as primitive governed by a rudimentary political system with diverse and differing customs that had not advanced enough to form a formal legal system. The fourth school of thought had a better perception of African customary law and was supported by anthologists such as Rattray, Talbot, Ellis and Farrow, who had carried out extensive studies of different African cultures and customs. This school of thought held that the African system of administration of justice was the best-suited system as it was best adapted to deal with the African people and their system of life. It stressed the customs were indeed a system of law that was adequately equipped to regulate the society as it was adaptable and considered the peculiarities of the African communities.

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In the pre-colonial African society, the question of the legitimacy of customary law did not arise as the African societies applied their customs and traditions through their various political organisations, predominantly established to be kingdoms. It was well documented by Spanish-Arab scholars that from at least the fourth century, African empires and kingdoms in West, East and Southern Africa were well established with flourishing political systems. The arrival of the Arab slavers and European settlers who introduced religion and commercial pilfering of African human and natural resources greatly disrupted the effectiveness of the African empires and principalities. Political disorganisation, the scramble and partition of Africa and subsequent subjugation of the African people ‘contributed towards the disintegration of African societies in most parts of the continent’.

During colonisation, the legitimacy of customary law was questioned as it did not distinguish criminal wrongs from civil wrongs making it difficult for the administrators to pass judgment on the severity of the crime. Aspects such as murder and theft that were considered criminal offences by European law were considered as issues of private law that could be resolved within the community and the particular individuals and did not require state intervention. The belief that customary law was unsuitable was as a result of the pre-colonial perception that the African person was not civilised enough to form or understand such complicated notions such as distinction of crimes. This assumption based on the idea that the African people were a primitive savage people who were almost always at war with one another and unable to rule themselves due to social ineptitudes. This belief was however disproved with the anthropological study of the complex and highly developed political and administrative processes of traditional communities as well as the recognition of different forms of justice amongst African communities. In fact, Meek reflected that ‘… what [were] crimes or torts to us [Europeans] for the most part [were also]crimes or torts to them’. On writing about the nature of the primitive society, Lowie assessed that ‘primitive law [made] a clear distinction between torts and crimes’. This view was supported by Diamond who also held the view that African societies were able to distinguish between criminal and civil wrongs. Whereas African customary law was admittedly not as established as European law in the qualification of the different wrongs and their forms of redress, it was clear that there was a recognisable system of law that recognised criminal and civil wrongs and offered measures for redress. The African system did not offer imprisonment as a sanction but offered compensation to the victims of crimes such as murder. It also provided for other sanctions such as summary execution which was similar to the European development of a death sentence for a grievous crime. If the qualification of a system of law was defined as the recognition of the different categorizations of wrongs in the society and their redress, then the African system certainly met this threshold and was considered a recognisable system of law.

CHAPTER 1: INTRODUCTION
1.1 Background 
1.1.1 Purpose of study
1.1.2 Problem statement
1.1.3 Significance of study
1.1.4 Research questions
1.2 Literature review
1.2.1 Theoretical framework
1.2.2 Literature overview of the structure of family and marriage in Africa
1.3 Research methodology
1.3.1 Approaches
1.3.2 Research design
1.4 Limitations 
1.5 Overview of Chapters
CHAPTER 2: INSTITUTION OF MARRIAGE IN AFRICA AND THE FOUNDATIONS OF WOMAN -TO-WOMAN MARRIAGE 
2.1 Introduction
2.2 Evolution of the concept of family in the West and Africa
2.3 Development of the institution of marriage in the West and Africa
2.4 Overview of comparative analysis between marriages in the West and woman-to-woman marriage in Africa 
2.4.1 Rationales for the traditional marriages of the West and woman-to-woman marriage
2.4.2 Rationales for same-sex marriages of the West and woman-to-woman marriage
2.5. Impact of colonization on the recognition of woman-to-woman marriages in pre-colonial Africa
2.6 Woman-to-woman marriage as a legitimate African family institution 
2.7 Conclusion
CHAPTER 3: WOMAN-TO-WOMAN MARRIAGE IN PRE-COLONIAL AFRICA
3.1 Introduction
3.2 Requirements of African customary marriages 
3.3 Rationale of woman-to-woman marriage in pre-colonial Africa
3.3.1 Enhancement of kinship ties within the clan
3.3.2 Legitimacy of children and their kinship
3.3.3 Retention of wealth and economic empowerment
3.3.4 Fostering freedom and independence
3.3.5 Securing of companionship
3.3.6 Fulfilment of sexual desire
3.4 Incidence of woman-to-woman marriage in West, East and Southern Africa
3.4.1 Woman-to-woman marriage in West Africa
3.4.2 Woman-to-woman marriage in Southern Africa
3.4.3 Woman-to-woman marriage in East Africa
3.5 Woman-to-woman marriage in Kenya 
3.6 Conclusion 
CHAPTER 4: EFFECT OF POST-COLONIAL LAW ON CUSTOMARY RECOGNITION OF WOMAN-TO-WOMAN MARRIAGE IN KENYA 
4.1 Introduction
4.2 Customary law in sub-Saharan Africa 
4.2.1 Introduction
4.2.2 Effect of colonization on customary law and marriage in Kenya
4.3 Statute and marriage in Kenya 
4.3.1 Marriage legislation in colonial Kenya
4.3.2 Marriage legislation in post-colonial Kenya
4.4 Effect of the Constitution and marriage laws on the recognition of woman-to-woman marriage
4.4.1 The Constitution and marriage in Kenya
4.4.2 The Marriage Act 2014
4.5 Judicial determinations on woman-to-woman marriage in Kenya 
4.5.1 Judicial determinations before 2010
4.5.2 Judicial determinations after 2010
4.6 Conclusion
CHAPTER 5: STATUTORY REGULATION OF WOMAN-TO-WOMAN MARRIAGE IN POST-COLONIAL KENYA 
5.1 Introduction 
5.2 Sources of law in Kenya: Legal plurality and the tension in statutory law and customary law
5.2.1 Customary law
5.2.2 Constitutions of Kenya before 2010
5.2.3 Constitution of Kenya 2010
5.3 Impact of the Constitution of Kenya on woman-to-woman marriage in Kenya 
5.3.1 Theories on constitutional interpretation of the Constitution of Kenya
5.3.2 Applied constitutional interpretation of Article 45(2) of the Constitution of Kenya
5.4 Impact of the Marriage Act on woman-to-woman marriage in Kenya
5.5 Conclusion 
CHAPTER 6: IMPACT OF THE GLOBAL DISCOURSE ON SAME-SEX MARRIAGE ON THE RECOGNITION OF WOMAN-TO-WOMAN MARRIAGE IN KENYA
6.1 Introduction
6.2 Impact of globalization and the global sex discourse on sexualities 
6.3 Impact of global discourses on same-sex marriage in identified African countries 
6.3.1 Impact of global discourses on same-sex marriage in Nigeria
6.3.2 Impact of global discourses on same-sex marriage in Uganda
6.4 Impact of global discourses on same-sex marriage in Kenya 
6.5 Evolution of discourse on the right to family and right to marry
6.6 Concurrence between the legal recognition of same-sex marriages and customary law marriages in South Africa
6.7 Conclusion 
CHAPTER 7: CONCLUSION 
7.1 Introduction 
7.2 Summary of findings 
7.3 Summary of legal position of woman-to-woman marriages in Kenya 
7.3 Recommendation and fields for further research 
BIBLIOGRAPHY 

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