Reading Kenyan Marriage

I have been trying to think about the ongoing work of marriage and marriage legislation in Kenya as a way to approach a range of attachments (and how they are narrated) within Kenya’s colonial modernity. In the more ambitious form of this undertaking, I am interested in the various marriage laws enacted prior to 1963—the Marriage Act (1902); the Mohammedan Marriage and Divorce Registration Rules (1906); the African Christian Marriage and Divorce Act (1931); the Matrimonial Causes Act (1941); and the Hindu Marriage and Divorce Act (1960). While a full accounting of each of these is beyond the scope of my interests, I am interested in how they track the changing meanings of marriage and intimacy, in the forms and formalities they demand, the congruencies they try to impose, the populations they try to manage, the intimacies they grant recognition.

Here, I present less a singular argument and more a brief snapshot of some interesting stuff.

The 1902 Marriage Act imagines gender in fascinating ways. The template used for the Notice of Marriage lists hypothetical (or typical?) occupations as “farmer” and “typist,” roles central to the building and administration of settler colonies. Perhaps there is a book out there titled Colonial Typists (if so, do let me know).

2. The Marriage Act itself contains few surprises, though I am struck by a provision on kindred and affinity. A Notice of Marriage may be issued provided “there is no impediment of kindred or affinity or any other lawful hindrance to the marriage.” This requirement is repeated later on in the document: “No marriage in Kenya shall be valid which, if celebrated in England, would be null and void on the ground of kindred or affinity.” Now, granted, the Marriage Act was most likely written to solemnize marriages between white Europeans and their descendants, but attention paid to African customary marriages and (so-called) Mohammedan marriages suggest that the Act was used by all social and racial groups. In Casebook on Kenya Customary Law, Eugene Cotran claims that there are no recorded cases based on “prohibited degrees,” “presumably because these problems do not arise in practice.” I wonder about the absence of such cases and what such an absence, in the court, might tell us about the re-organization of intimate life under colonial modernity.

2. What was (or has been) the relationship between African Customary Marriages and those contracted under the colonial gaze? The African Christian Marriage and Divorce Act (1931) offers a clue:

9.1. Whenever any persons already married or professing to be married to each other by native law and custom desire to convert that marriage into a marriage by which they are legally bound to each other as man and wife so long as both shall live, they may, subject to the provisions of sections 7 and 8 of this Act, contract a marriage before a licensed minister in a place of worship or before a registrar in his office.

Subsequent subsections insist that Christian marriages are “legal” and “lifelong,” implicitly contrasting them to customary marriages, here understood as “not-legal,” or “not-as-legal” and “impermanent,” subject to whim and caprice. Whether or not customary, non-Christian marriages were stable or not, is a different issue. What I’m interested in is a very familiar racializing trope. It’s striking that non-permanence of marital ties is a feature attributed to populations designated non-white—it runs throughout Anglophone Caribbean archives, for instance.

3. Introducing Cotran’s Casebook, professor A.N. Allott describes a conference convened in London in December 1959 under the title of “The Future of Law in Africa.” He notes,

[T]he Conference recognized that customary and religious personal laws in Africa were deeply entrenched and unlikely to be voluntarily abandoned in the domain of marriage, the family, and succession in the foreseeable future, whatever modifications they might have undergone.

A too-standard narrative would read this statement as endorsing the view that kinship relations are a “resistant kernel,” impervious to historical change or influence, and, as such, the foundation for anti-colonial and nationalist projects. While I do not dismiss this view wholly, I am interested in asking what is it that accounts for kinships’ ostensible resistance to change? What is secured and sutured by an understanding of kinship relations as, in one judge’s estimation of marriages, “basically similar”? (Here, there are some easy answers—ethnicity, nationality, community, grounds for communication and resolution, shared or shareable affect, multiple economies, and so on. What might it mean to introduce fractures into that “basically similar”? Lauren Berlant writes, “normativity . . . promises to protect a fantasy that there is something simple in the human, something that stands relatively still amid the subject’s compelled responsivity to the daunting material conditions of the reproduction of life.” And it’s tempting to see how in 1959, on the brink of independence, normativity could become a ground and fantasy for action and inaction.)

4. The Marriage Causes Act (1941) lists “sodomy” and “bestiality” as causes for divorce proceedings—a wife has cause to seek divorce if her husband engages in them. This wording is replicated in the Hindu Marriage and Divorce Act (1960). (The sodomite was a relatively common figure in Kenya’s colonial history, if one is to believe Meinertzhagen and Waugh; the first legal record I have of this figure dates from 1912.)

I have no real handle on any of this, nor am I sure it will lead anywhere concrete. For now, I am enjoying the ramble.