Law is the state. Albeit a bold statement that attracts its own fair share of criticism, the law of a country should always reflect the states interests; its stance on matters, its beliefs and values. The law ought to be uniform to all persons, providing a unified front and administered by only the state mechanism to the extent that all other normative orderings such as the church rank lesser and are outrightly subordinate to the law and institutions declared by the state. This offers a clear description of the importance of the law and the role of the state in effecting law. Summarized, the law should reflect the state’s agenda and clear on what the state wants to achieve. Enter legal pluralism and the law seems to lose its conception with a myriad of agendas seemingly served owing to the complex nature of legal pluralism and despite many countries having the Constitution as the main body of laws, an allowance for other sources of law creates uncertainty in specific issues. Conceptually, an insight into family law in Africa outlines a distinct characteristic of customary, religious and state laws co-existing within the same social context. This paper seeks to explore the topic of legal pluralism with regard to the Marriage Act in Kenya seeking to clarify the role of the state and the confusion that arises as a result of the all-encompassing nature of the Marriage Act 2010.
WHAT IS LEGAL PLURALISM?
Simply put, legal pluralism is the incidence of multiple systems of law within a culturally diverse society. This connotes multiple system of rules applicable in a particular jurisdiction. Ordinarily most functioning subgroups in a society are governed by their own specific rules, creating distinct legal systems that are different in some respects as you move from one subgroup to the other. A legal system is said to be pluralistic in the juristic sense when there are parallel legal regimes all operating in one state influenced by different groups that vary in either ethnicity or religion. These rules are propagated and commanded by a sovereign and are in operation as law applicable to the various groups within the populous. It emanates as a particular problem of colonialism, where European countries impose their legal systems within pre-existing systems in the colony states creating a sort of dualism that has persisted to date in most African countries.
M.B Hooker in his book defines legal pluralism as circumstances in the contemporary world which have resulted from the transfer of whole legal systems across cultural boundaries. Legal problems of the juristic kind confront leaders of numerous post-colonial societies, who commonly regard their multifaceted legal systems as exasperating, messy, and obstreperous to progress.
Legal pluralism is a characteristic of most legal systems worldwide and unique in the sense that not only are there assortment of laws but these laws are uncoordinated and give room for competing claims, conflict of demands and diverse interpretations of laws, thus in turn creates uncertainty in the body of legal knowledge. Law claims to permeate every strata of life, but legal pluralism challenges this claim, because in essence legal pluralism is a confluence of history, politics, sociology and the culture of the people whose colonial law supplants.
Modernization and nation-building require an amalgamated legal system, one where the laws are clear and concise, without any room for bargaining or blurred lines. The same can be said about marriage. In most parts of Africa, owing to the super-imposition of colonial laws and subsequent annexation of customary laws on the various colonies, several types of families are seen to exist depending on the extent of assimilation or resistance. This varied outlook on family has created several loopholes in Kenya’s legal system leaving room for injustices on some. The marriage act albeit a much needed strive towards unification, has left some areas open for interpretation leading to the said injustices as will be outlined below.
HISTORICAL BACKGROUND OF DEVELOPMENT OF MARRIAGE LAWS IN KENYA
Pre-colonial and Colonial Period
The pre-colonial period was characterized by autonomous self-governing ethnic groups with each having its own norms, rules, traditions or customs that not only regulated their daily life but further provided for a guiding mechanism in the institution of marriage inclusive of dissolution and dispute resolution techniques for when the need arises. Marriage was essentially recognized, celebrated and governed by customary practices indigenous to the different communities.
Enter the colonial period and with it came colonial powers imposing their marriage laws on the helpless African communities creating segregation of the indigenous customary practices at the time. The multiplicity of laws was a dominant feature of colonial rule, not unique to family law but sparring although different legal facets in colonial Kenya. This plurality of laws was deemed necessary in order to distinguish and retain the diversity of the populace denoted in the country on the basis of race, religion, and custom.
Imposition began with the promulgation of the East African Order in council in 1897 which introduces to the colony British and Indian Acts meant to govern the British and Indian settlers in the country. The application of the two acts was limited only to the settlers with the natives having their own dispute resolution mechanism provided for through the native courts whose guidelines and operative mechanisms were provided for by the then commissioner. The 1897 Act further prescribed that the Christians would be governed by English and Common law with Islamic law governing the Mohammedan natives and lastly the law of the tribes governing the different ethnic groups so long as it was not repugnant to morality and justice. The multiplicity of laws created a distinction between the natives giving rise to the Christian natives, the non-Mohammedan natives and the Mohammedan natives as well as the recognition of the British settles and Indian migrant workers as part of the colony.
Due to the historical factors explained above, family law in Kenya was regulated under four different legal regimes, namely:
African customary laws of the various cultural groups.
Hindu Marriage and Divorce Act, based on Hindu law and governing adherents of the Hindu faith.
Mohammedan Marriage and Divorce Act, based on Islamic law and governing adherents of the Islamic faith.
Marriage act and the African Christian Marriage and Divorce Act, governing people who choose to marry under the formal law, regardless of their cultural or religious background.
DISCONTENT WITH PLURALISM THEN:
The multiplicity of laws exacerbated women’s marginalization as women were at the node of state, customary, and religious legal norms all of which were inherently discriminatory and premised on gendered notions of the roles of men and women. Also, plural normative regimes of family law meant that that equal justice was not feasible across the country.
The post-independence period can be seen as a period of enlightenment with most leaders recognizing the need for unity within the country. Ethnic, religious and racial plurality stood out as the biggest hinderances and thus the government sought to address these issues to achieve its overarching goal of national unity. The multiplicity of indigenous justice systems engendered by customary law was perceived as a hindrance to social and economic development. It had dawned on the government the utmost importance of a uniform legal system probing measures to integrate the dual legal system present at the moment. The first significant measure came in 1967 with the abolition of the native courts and introduction of a unitary court system. This was consequently followed by concerted efforts to harmonize the customary laws of the various people groups with the received law, a feat not easily achievable for any state. Paying particular focus on the family for purposes of this paper, there were two Commissions established that have played a significant role in shaping family law in Kenya. The commissions, one on Marriage and the other on Succession, were appointed in 1967, with the mandate of drafting uniform laws of marriage (and divorce) and succession respectively. These changes were effected through a number of statutes, namely the Judicature Act (Cap. 8), the Magistrate’s Courts Act (Cap. 10) and the Kadhis’ Courts Act (Cap. 11). The Marriage Commission in its 1968 Report annexed a Marriage Bill which was intended to constitute a unified system of marriage law. This bill was presented before parliament in parliament in 1968, 1979 and 1985 but was never passed.
Change at last came in 2010 when Kenya adopted a new Constitution, with what is perceived by many as a generally progressive bill of rights. The adoption of the new Constitution triggered and guided an extensive review of all existing legislation to streamline the law with the much awaited and welcomed new standards and to give effect to new constitutional provisions. Following the adoption of the much-awaited Constitution, a wide-ranging process of law reform – including the reform of family laws – began. In May 2014, a new Matrimonial Property Act was adopted. The adoption of the Marriage and Matrimonial Property Acts consolidates a number of laws previously contained in statutory law, the principles of common law, as well as customary law.
According to the Marriage Act, for a marriage to be recognized in Kenya, it has to be one of five kinds: Christian, civil, customary, Hindu, or Islamic.
A CASE AGAINST PLURALISM
The ultimate challenge of marriage law reforms in the period after the adoption of a new Constitution has been the potential to have a universally applicable law that takes into account the interests of various groups without undermining equal rights as set out in the Constitution and international law. It has been claimed that previous recognition of multiple regimes in response to diversity in fact entrenched the separation standard through restrictions on the application of the other regimes, at the expense of other systems of personal law. This was the case because of a lack of a clear stand on a particular set of issues which creates a situation where certain communities are able to get away with some practices with the same practices prohibited in other regimes. The status quo is maintained with the current marriage act, in an attempt to be all inclusive, confusion is created with regard to particular issues as evidenced below:
Same sex Marriages
Section 3 of the Marriage Act clearly outlines that a marriage is a voluntary union of a man and a woman further pointing out that all marriages in the act have similar equal legal status. This connotes a clear law that describes legal marriages as only those between a man and woman but an analysis into customary law reveals same sex marriages among women given the same legal status as heterosexual relationships prescribed by the act explicitly.
Research by Hidetoshi Katakami on female husbands defines woman -to-woman marriage as the procedure by which a woman takes on the legal and social roles of a husband and father by marrying another woman in accordance with the approved and recommended rules and ceremonies of her society. In this type of marriage a female takes another female as her “wife”. She performs all the necessary recommended customary rights and ceremonies associated with a valid marriage in her community and stands in the position of a husband to her wife. Woman-to-woman marriage may at times extend to involve a surrogate female who takes the position of a male solely for the purposes of providing offspring for the male’s family which is commonly seen in kinship scenarios. The purpose of a union such as this is to provide a male heir. In elaborating on the institution of woman to-woman marriage as it relates to the Nandi people of Kenya, Cotran emphasized that a woman past the age of (among the Nandi and Kipsigis) child-bearing and who has no sons, may enter into a form of marriage with another woman at times during the lifetime of her husband, but predominantly after his death. As in regular marriage not only is marriage consideration paid but a man from the woman’s husband’s clan has sexual intercourse with the girl in respect of whom marriage consideration has been paid. Any children born to the girl are regarded as the children of the woman who paid marriage consideration and her husband.
In the Matter of the Estate of Cherotich Kimong’ony Kibserea the court found the existence of a woman-to-woman marriage between the petitioner and the deceased under the Nandi custom and, accordingly, held that the petitioner was a “wife”, and that by the operative customary law, she and her sons belonged to the household of the deceased, and were entitled to inheritance right, prior to anyone else further giving woman to woman legal recognition and backing in Kenya.A review of the various customary marriages indicates that woman-to-woman marriage is prominent not only in the Nandi but extends to an array of different communities such as the Kikuyu and Kamba communities.
Evidently this creates some confusion. How does the same act that prescribes the sex of the spouses allow for other unions? Hence the problem of legal pluralism and thus comes the role of the state to ensure its stance is clear on the issue.
Age of marriage