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An Argument for the Continued Validity of Woman-to-Woman Marriages in Post-2010 Kenya

Published online by Cambridge University Press:  05 November 2019

Monicah Kareithi  and
Frans Viljoen
Monicah Kareithi*
Affiliation:
University of Pretoria
Frans Viljoen*
Affiliation:
University of Pretoria
*
[email protected]
[email protected]
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Abstract

Woman-to-woman marriage is a form of customary marriage between two women, predominantly found in Africa. These customary marriages have been and to some extent still are conducted by various communities across Africa, including in Kenya. Communities such as the Kamba, Kisii, Nandi, Kikuyu and Kuria practise woman-to-woman marriages for a variety of reasons. The legal status of woman-to-woman marriages in Kenya is uncertain due to the provisions of article 45(2) of Kenya's Constitution of 2010 and section 3(1) of the Marriage Act of 2014, which stipulate that adults only have the right to marry persons of the opposite sex. However, a holistic and purposive reading of the constitution, taking into consideration its recognition of culture and the protection of children as important values in Kenyan society, and considering the historical context within which the provisions concerning same-sex marriages were included, leads to the conclusion that these provisions were not intended to proscribe the cultural practice of woman-to-woman marriage in Kenya. The constitutional validity of woman-to-woman marriage opens the door to a more expansive and fluid understanding of “family” in Kenya.

Keywords

Woman-to-woman marriageAfrican customary lawconstitutional interpretationlegal pluralitysame-sex marriage
Type
Research Article
Information
Journal of African Law , Volume 63 , Issue 3 , October 2019 , pp. 303 - 328
Copyright
Copyright © SOAS, University of London 2019 

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Footnotes

*

Doctoral graduate, Centre for Human Rights, Faculty of Law, University of Pretoria. This article is based on work done as part of the author's doctoral thesis: M Kareithi A Historical-Legal Analysis of Woman-to-Woman Marriage in Kenya (2018, University of Pretoria), completed under the supervision of Frans Viljoen.

**

Professor of law and director, Centre for Human Rights, Faculty of Law, University of Pretoria.

References

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23 Greene “The institution of woman-to-woman marriage”, above at note 4 at 399.

24 Cardigan “Woman-to-woman marriages”, above at note 2 at 89.

25 Greene “The institution of woman-to-woman marriage”, above at note 4 at 395.

26 Id at 396.

27 Ibid.

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30 Obbo, C “Dominant male ideology and female options: Three east African case studies” (1976) 46/4 Africa 371CrossRefGoogle Scholar at 372.

31 Ibid.

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33 Cardigan “Woman-to-woman marriages”, above at note 2 at 94.

34 Nwoko “Female-husbands in Igbo land”, above at note 28 at 78.

35 Rwezaura, BA Traditional Family Law and Change in Tanzania: A Study of the Kuria Social System (1985, Nomos)Google Scholar at 143.

36 Ibid.

37 Cardigan “Woman-to-woman marriages”, above at note 2 at 89.

38 Ibid. This is particularly true of the form that the institution of “woman marriage” takes in Dahomey (an African kingdom that lasted from the 1600s to the 1800s in the area of present-day Benin).

39 Eskridge, WN “A history of same-sex marriage” (1993) 79/7 Virginia Law Review 1419CrossRefGoogle Scholar at 1420.

40 Cardigan “Woman-to-woman marriages”, above at note 2 at 95.

41 This is notable in the Kamba community of eastern Africa.

42 Oboler “Is the female-husband a man?”, above at note 1 at 73.

43 Njambi and O'Brien “Revisiting woman-woman marriage”, above at note 1 at 5. In one of the interviews that Njambi and O'Brien conducted, their subject spoke openly of her need for a companion in her old age.

44 Some communities, such as the Gusii and Kuria, referred to the woman who paid the bride wealth as the “mother in law” because it was assumed that she had a fictitious “son” for whom she was marrying a wife.

45 Gray, R “Sonjo bride-price and the question of African ‘wife-purchase”’ (1960) 62 American Anthropologist 34CrossRefGoogle Scholar at 34.

46 Judicature Act 16 of 1967, sec 3(2).

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48 Robinson, RE “The administration of African customary law” (1949) 1 Journal of African Administration 158Google Scholar at 158.

49 Ibid.

50 Above at note 46.

51 Id, sec 3(2).

52 Phillips, A “Marriage and divorce laws in east Africa”(1959) 3/2 Journal of African Law 73CrossRefGoogle Scholar at 93.

53 Ordinance 30 of 1902.

54 Ordinance 9 of 1904.

55 Kenya Law Resource Centre “History of the law of succession in Kenya”, available at: <http://www.kenyalawresourcecenter.org/2011/07/history-of-law-of-succession-in-kenya.html> (last accessed 3 September 2019).

56 [1912] 4 EALR 160.

57 Native Christian Marriage Ordinance, sec 7.

58 Act 51 of 1931.

59 [1917] 7 EALR 14.

60 Cotran, E “Marriage, divorce and succession laws in Kenya: Is integration or unification possible?” (1996) 40/2 Journal of African Law 194CrossRefGoogle Scholar at 197.

61 F Ombura “Registration of customary marriages: 100 years after R vs Amkeyo” (2017), available at: <https://thedeuteronomy.bitalaadvocates.com/2017/06/23/registration-customary-marriages-100-years-r-vs-amkeyo/> (last accessed 17 September 2019).

62 R v Mwakio [1932] 14 KLR 133. The judge stated (at 133), “it is unfortunate that the word wife and marriage have been applied in this connection. If only the woman party had been described as a concubine or something of the sort, the question could never have arisen”.

63 Civil app no 1 of 1981.

64 Ibid.

65 A Wassuna Averting a Clash Between Culture, Law and Science: An Examination of the Effects of New Reproductive Technologies in Kenya (masters thesis, McGill University, 1999) at 77.

66 Ibid.

67 [1981] divorce cause no 16 of 1980.

68 See E Cotran “Effects of death on marriage: Case no 55” in Cotran Casebook, above at note 1, 185 at 195.

69 [2006] succession cause no 616 of 1997.

70 Act No 4 of 2014.

71 The Constitution, art 2(1).

72 Id, art 162.

73 Id, art 11(2)(a).

74 Act 33 of 2016.

75 Marriage Act, sec 6(1).

76 Although not often or elaborately discussed, there is some indication that sexual fulfilment was, at least partly, a rationale for some woman-to-woman marriages. Authors such as Nkabinde and Morgan, Epprecht, Newell, and Njambi and O'Brien discuss these elements in their work. Nkabinde and Morgan discuss the custom of taking ancestral wives among the sangoma [traditional healers] in certain communities in southern Africa; see generally N Nkabinde and R Morgan “Chapter seven” in Morgan and Wieringa (eds) Tommy Boys, Lesbian Men, above at note 4, 231 at 232; Epprecht, M “‘Bisexuality’ and the politics of normal in African ethnography” (2006) 48/1 Anthropologica 187CrossRefGoogle Scholar at 201; Newell, S The Forger's Tale: The Search for Odeziaku (1st ed, 2006, Ohio University Press)CrossRefGoogle Scholar; and Njambi and O'Brien “Revisiting woman-woman marriage”, above at note 1.

77 Constitution of The Republic of Uganda, art 31(2)(a).

78 D Opiyo “New law shuts door to gay weddings” (18 November 2009) The Nation, available at: <http://www.nation.co.ke/news/1056-688058-jk0qvpz/index.html> (last accessed 3 September 2019).

79 See generally G wa Njenga and G Weru “Two Kenyan men wed in London” (17 October 2009) The Nation, available at: <http://www.nation.co.ke/news/1056-673614-jkpmrsz/index.html> (last accessed 3 September 2019); M Karanja “A family scarred by homophobia” (22 October 2009) The Nation, available at: <http://www.nation.co.ke/news/1056-675940-jko6pjz/index.html> (last accessed 3 September 2019); X Rice “Kenya launches gay survey while homosexuality remains illegal” (29 October 2009) The Guardian, available at: <https://www.theguardian.com/world/2009/oct/29/kenya-launches-gay-survey> (last accessed 3 September 2019); Darian “Marriage of Kenyan gay couple in the UK sparks controversy” (21 October 2009), available at: <http://loldarian.blogspot.co.za/2009/10/marriage-of-kenyan-gay-couple-in-uk.html> (last accessed 3 September 2019).

80 M Ringa “Kenya: Law review experts rule out rights for homosexuals” (18 October 2009) Daily Nation, available at: <http://allafrica.com/stories/200910190050.html> (last accessed 3 September 2019).

81 Ibid.

82 Ibid.

83 Ibid.

84 Ibid.

85 Report of the Constitution of Kenya Review Commission: Volume Two - The Draft Bill to Amend the Constitution (CKRC Official Draft), available at: <http://www.katibainstitute.org/Archives/images/sampledata/CKRC_official_draft.pdf> (last accessed 3 September 2019).

86 C Murray “Kenya's 2010 Constitution”, available at: <http://www.iapo.uct.ac.za/usr/public_law/staff/Kenyas%202010%20Constitution.pdf> (last accessed 3 September 2019).

87 CKRC Official Draft, above at note 85, art 38(3)(a).

88 Universal Declaration of Human Rights, art 16(1) states: “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.”

89 Constitution of South Africa 1996, sec 9(3) provides: “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

90 Murray “Kenya's 2010 Constitution”, above at note 86 at 20.

91 “The Proposed New Constitution:  Popular version” (14 September 2005), available at: <http://www.katibainstitute.org/Archives/images/4-The%20%20Popular%20Version%20of%20the%20Wako%20Draft%20-%20Final%20with%20Drawings-14th%20Sept%202005.pdf> (last accessed 3 September 2019).

92 Id at 13.

93 There were a number of drafts before the Constitution's promulgation in 2010. The constitutional review process followed two processes. The first was the CKRC set up in 2000, which was followed by the National Constitutional Conference (Bomas) in 2003–04. The CKRC produced the draft constitution popularly referred to as the Ghai draft in 2002, while the Bomas conference produced a revised draft (Bomas draft) in 2004. Parliament took over the drafting process in 2005 and set up a Parliamentary Select Committee (PSC), which revised the Bomas draft. In 2005 Parliament adopted the PSC draft, popularly known as the Wako draft (above at note 91). After the contentious 2007 elections, the National Accord set up the Committee of Experts (CoE) in 2009, which reconsidered the earlier drafts and created a Harmonized Draft in 2009. After public consultation, the CoE produced the Revised Harmonized Draft in 2010, which was presented to the PSC for comment. The PSC's comments were incorporated and the proposed constitution was presented to Parliament, which adopted it in 2010. The document was presented to the public and submitted to a referendum in August 2010. The Constitution was then promulgated on 27 August 2010. See Katiba Institute “About drafts”, available at: <http://www.katibainstitute.org/Archives/index.php/drafts/about-drafts> (last accessed 3 September 2019).

94 The NCCK is a body made up of protestant churches and Christian organizations registered in Kenya and is the largest council of churches in the world.

95 C Karongo “NCCK says no to push for gay marriages” (11 May 2012) Capital News, available at: <http://www.capitalfm.co.ke/news/2012/05/ncck-says-no-to-push-for-gay-marriages/> (last accessed 3 September 2019).

96 E Buchanan “LGBT in Kenya: Government needs to stop violent anti-gay attacks” (28 September 2015) IB Times, available at: <http://www.ibtimes.co.uk/lgbt-kenya-government-needs-stop-violent-anti-gay-attacks-1521533> (last accessed 3 September 2019).

97 C Coward “IDAHO day event and a lesbian blessing in Kenya contrast to the 14-year sentence given in Malawi” (21 May 2010, copy on file with the author).

98 See generally “The World Social Forum 2007: A Kenyan perspective” (12 February 2007), available at: <http://www.cadtm.org/The-World-Social-Forum-2007-A” (last accessed 3 September 2019); Kenya Human Rights Commission “The outlawed amongst us”, available at: <http://www.khrc.or.ke/mobile-publications/equality-and-anti-discrimination/70-the-outlawed-amongst-us/file.html> (last accessed 3 September 2019); Karanja “A family scarred”, above at note 79; Ringa “Kenya: Law review experts”, above at note 80; L Barasa “PM orders arrest of gay couples” (28 November 2010) Daily Nation, available at: <http://allafrica.com/stories/201011290110.html> (last accessed 3 September 2019); P Beja “Bishop: Gays [sic] dangerous than terrorists” (23 July 2012) The Standard, available at: <https://www.standardmedia.co.ke/?articleID=2000062448> (last accessed 3 September 2019).

99 Kelso, RR “Styles of constitutional interpretation and the four main approaches to constitutional interpretation in American legal history” (1994) 29/1 Valparaiso University Law Review 121Google Scholar at 130.

100 The Constitution, art 260.

101 Id, art 14(4) provides that any child found in Kenya under the age of eight years old is presumed to be a citizen of Kenya by birth. Id, art 15(3) provides that any child who is not a citizen but is adopted by a Kenyan may apply for Kenyan citizenship.

102 Id, art 53(1)(e).

103 Children Act, sec 4.

104 The Constitution, art 45(1).

105 Id, art 31(c).

106 Id, art 45(4)(a) and (b).

107 [2011] succession cause no 212 of 2010.

108 Id at 21 and 22.

109 Id at 23. The Constitution, art 11(1) enshrines the principles of culture as the foundation of the nation.

110 [2014] civil app no 106 of 2011.

111 Ibid.

112 The Constitution, art 256(1)(a).

113 Id, art 256(1)(b).

114 Id, art 256(2).

115 Id, art 257(1) and (2).

116 Id, art 257(4).

117 P Bowry “Is it time to amend Kenya's Constitution?” (22 April 2015) Standard digital, available at: <https://www.standardmedia.co.ke/article/2000159271/is-it-time-to-amend-kenya-s-constitution” (last accessed 3 September 2019).

118 Ibid.

119 Ibid.

120 See generally Katam v Chepkwony, above at note 107, where the High Court interpreted art 11(1) of the Constitution on woman-to-woman marriage, stating that the form of marriage was an expression of culture under Nandi customary law; Samson Kiogora Rukunga v Zipporah Gaiti Rukunga (2011) succession cause no 308 of 1994, where the High Court interpreted id, art 60(f), stating that the article provided for the elimination of gender discrimination and allowed a married daughter to inherit land from her father's estate; C MS v IAK Suing through Mother and Next Friend CA O (2008) const appln no 526 of 2008, where the High Court interpreted id, art 53(2) and ruled that DNA testing would be conducted if it is in the best interest of the child.

121 Protection of Traditional Knowledge and Cultural Expressions Act 2016, sec 4(1).

122 Id, sec 5.

123 Id, sec 43.