Kenya’s Marriage Bill

In a recent article, Judy Thongori advises Kenyans to read and understand the Marriage Bill, which was introduced into parliament in 2007. As she rightly notes, “Marriage affects all of us at one time in life, whether it is our marriages, our parents’ marriages, or those of our children.” This bill, Thongori continues, will be the first time that Kenya’s marriage laws have been reconsidered since 1962.

Before explaining the content of the law, Thongori argues, “Our family values and experiences must enrich this law.” Indeed they must.

The Marriage Bill privileges heterosexual marriage as the ideal union that receives recognition and privileges within the law. For instance, Part IV, Matrimonial Rights, Liabilities and Status, notes,

either spouse is presumed to have authority to pledge the other spouse’s credit, or to borrow money in his or her name, or to use any of his or her money which is in his or her possession or under his or her control, or to convert his or her movable property into money, and use it, so far as that credit or money is required or used for the purchase of necessaries for himself or herself and any children of the marriage, and so far as is reasonable having regard to the other spouse’s means and way of life.

Although this section of the bill protects both men and women by providing them access to jointly shared and created assets, it also discriminates against the many Kenyans who share households but are not married. It discriminates against those men and women who live with their parents, those siblings who share houses, and friends who live together. After all, bills are bills, whether owed by a married couple or siblings who live together.

We cannot presume that marriage is based on a commitment so profound that it trumps other kinds of social attachments. Many of us are pledged to take care of our parents, siblings, friends, and other loved ones, and those pledges are not recognized by a system that recognizes marriage as the privileged social bond.

Family values in Kenya are not restricted to monogamous marriages, nor even to marriages. They are drawn from our extended families, the obligations we have for distant cousins and adopted relatives, the habits of care that we extend to each other as citizens. Family values cannot and should not be an excuse to discriminate against other Kenyans.

The Marriage Bill discriminates against Kenyans with same-sex partners and companions, who cannot get married.

We need to remember that this Marriage Bill was introduced into parliament shortly after the contentious Sexual Offences Act passed. An earlier draft of the Sexual Offences Act had to be revised when conservative members of parliament argued that the Act seemed to decriminalize homosexuality.

Moreover, Kenya is not immune to world forces, and we have followed debates over homosexual marriage in South Africa, where it is legal, and the United States, where it is available in some States, not all. Homosexual marriage has been debated by various church organizations, creating fractures in both the Presbyterian and Episcopalian churches.

Let us be very clear about this: this bill is for heterosexual marriage and against homosexual marriage. After all, it defines marriage as “the voluntary union of a man and a woman intended to last for their life time.”

In fact, this bill is so threatened by the very idea of same-sex marriage that it does not even prohibit homosexual marriage!

Out of sight, out of mind. If it cannot be mentioned then it cannot exist. Apparently, Kenya has no homosexuals, and certainly none who are interested in establishing long-term relationships that would receive the same marriage benefits as heterosexuals.

As written, the bill is discriminatory.

Yet, as Thongori notes, it is an important bill, and one that will help Kenyans by providing legal guidance about marriage.

If Kenya is to become a more just society, a fairer society, a place where individual rights are not sacrificed on the altars of conservatism and bigotry, then we must re-think this Marriage Bill.

We must understand that so-called family values should not trump the obligations we have toward each other to act as ethical citizens, bound together by the constitution that guarantees our rights. When we privilege “family values” over the constitution, we fragment into ethnic enclaves and class-protected cocoons, eager to defend our own against external threats.

To amend Thongori, then, we need to consider how our values as citizens should inform this bill. Not our family values, but the values we share as Kenyans. This, I suspect, is a far more difficult question to answer. What values do we share as Kenyans? What do we wish for each other? How do we enhance each others’ lives?

A marriage bill based on these questions would be, I suspect, a radically different beast. It would look at how we actually live, not idealize marriage as the form we should inhabit. It would note, for instance, the many young people who have longstanding relationships that do not culminate in marriage. It would look at homes composed of parents and children or siblings or friends, and consider them equal to the marriage home. It would look at different sex and same-sex relationships, and understand that love and passion are not limited by the sex of one’s partner.

A marriage bill based on the values of an ethical citizenship would ask about the obligations we owe each other as Kenyans. As Kenyans, we owe each other the rights guaranteed by the constitution. We owe each other the right to pursue freedom and even happiness. Our goal as Kenyans should be to expand freedom for each other, not to create needless, discriminatory barriers in the name of family values.