by Neda Monshat
After Kenya adopted a new Constitution in 2010, which incorporated a comprehensive Bill of Rights, women’s groups quickly seized the opportunity to advocate for a single piece of legislation encompassing the non-negotiable equality and non-discrimination requirements into the regulation of marriage. Although the legislation was a long time coming, various revisions failed to pass. Finally, on April 29 of this year, Kenyan President Uhuru Kenyatta assented to the Marriage Act. In addition to entitling women to 50% of marital property upon the dissolution of marriage and banning all marriages below the age of 18, the new law recognizes polygamous marriages and, through a last-minute amendment, entitles men to marry as many women as they wish without first consulting existing wives. The practical implications of legalizing polygamy demand a look-in.
There are two main questions to ask: Firstly, does bringing polygamy into the formal legal system conflict with the stringent equality and anti-discrimination provisions of the Constitution? Secondly, is there an argument for accepting formal polygamy laws and the last-minute amendment which inspired women MPs to walk out in protest?
On the first question, the Committee on the Elimination of Discrimination against Women, the most authoritative international voice on the status of women, regards the practice of polygamy as inherently discriminatory. Citing its potential for casting women in an inferior role to men, the Committee notes that polygamous marriages can have “serious emotional and financial consequences for [a woman] and her dependents [and]…ought to be discouraged and prohibited.”
It is therefore understandable that many were surprised to hear that the Kenyan chapter of the International Federation of Women Lawyers (FIDA-K) came out in support of the law. Whilst local and international media reported that many Kenyans believed the law to be retrograde, FIDA-K’s Executive Director, Christine Ochieng, stated in a CNN report in May that the organization “is happy with the law because finally all marriages are being treated equally.”
The debate now shifts to whether recognizing the value in the equality of different types of marriage has to occur at the cost of equality for women. In fact, it may arguably be a position more grounded in reality, with the interests of Kenyan women taking priority. At least from a legal standpoint, for the 13% of currently married Kenyan women engaged in polygamous marriages (according to Kenya National Bureau of Statistics’ 2009 report), recognizing them has a number of positives. Most of all, by affording women in a polygamous marriage equal standing with their co-wives, the law entitles them to an equal division of property upon the marriage dissolving or the death of the husband. Prior to this law, second wives were not formally recognized and therefore had little claim to marital property—a situation that could have dire consequences for them and their dependents.
The question of the amendment that allows men to marry as many wives as they wish without prior consultation with existing wives is a little more complex. Whether one approaches the issue from a realist perspective acknowledging the actual situation for Kenyan women or an idealist perspective aiming to enforce international human rights standards, it is difficult to advance any credible argument against the destructive inequality present. That is, unless you are a realist that cares nothing of equality or a human-rights advocate that doesn’t view women as human. Given that in most cases of polygamous marriages the resources of the family are shared, the practical implications on existing wives and children could be significant.
But it’s not all about money; health is also at the forefront of this debate. The most recent Kenya Demographic and Health Survey (2008/9) found that the incidence of HIV/AIDS is over double in polygamous marriages and men in polygamous marriages are more than three times as likely to have HIV than those in non-polygamous marriages. Keeping this in mind, that existing wives do not have a say as to whether a new wife may be brought into the family is a clear violation of a woman’s right to equality, health, and—in the context of a country where many do not have access to life saving antiretroviral medications—right to life.
So the question of the amendment is in fact not controversial: women should always have a say in decisions that affect them, especially where such decisions impact on their financial, emotional, and physical wellbeing. Whether polygamy being brought into the realm of formal law is of benefit to Kenyan women, or rather inexcusably sanctions a violation of their Constitutional right to equality, is less clear. The reality is that polygamy is a practice that continues in Kenya—rooted in cultural norms and customary law practiced for centuries. It is unlikely to stop with a legal prohibition and it may be that a formal recognition of polygamy is a reasonable attempt at reconciling cultural norms with human rights norms. Perhaps such a law is needed to protect women, but the real test for Kenyan lawmakers would be to advocate for the right of women to marry multiple spouses too.
Neda Monshat is a lawyer based in Nairobi, Kenya. She worked with the Kenyan Chapter of the Federation of Women Lawyers (FIDA-K) in 2012–2013.
Title image source: Andre Epstein