The language of the Marriage Act is gender biased

The idiom ‘have your cake and eat it’ applies to the practice in Kenya where a married man runs another ‘marital’ relationship ‘unknown’ to his wife, and vice versa.

Normalisation of the practice brings to mind the recent proposal by Ahmed Mahran of the Cairo Centre for Legal and Political Studies for legalisation of ‘part-time marriage’ as a solution to the burgeoning numbers of divorced and unmarried women.

Activists protested that it would embellish the excessive marital privileges men enjoy, did not reflect women’s views, trivialised marriage, and would destabilise stable families.

Earlier in the year, there was a proposal to legalise polyandry in South Africa.

A polygynous businessman wondered how children from polyandrous unions would establish their identities. Short of DNA tests, the answer is available from history.  In ancient Arabia where non-fraternal polyandry was practised, fatherhood was assigned to one of the husbands. In any case, why should the children not use their mother’s name as is already happening among some men, mainly from the central region of our country?

The dynamics of polyandry are outlined in the 2017 study, The dynamic nature of non- traditional unconventional polyandry: A Zimbabwean perspective by Prof Collins Machoko. The woman initiated the relationships and informed newcomers of the arrangement. The men knew one another, were committed to the union but lived separately.

Co-husbands

While some husbands paid bride wealth, others only sustained the woman’s livelihood. The woman reserved the power to dismiss husbands who were incompatible with peers.

All the men cherished the woman and dreaded losing her. Some knew that they had sexual performance deficits and appreciated the compensatory role of co-husbands.  The arrangement also redeemed the images of infertile men by masking that weakness through collective children.

A close look reveals that polyandry existed in Kenya in some form. The first type, called fraternal or adelphic polyandry, involves a man having a sexual relationship with his brother’s wife. In one community, tradition required a new bride to conceive in the first few months of marriage.

Because the husband could be infertile, he was required to vacate the bed for a while every night in order to allow his cousins to conjugate with his bride hence, guarantee that the child had ‘family’ blood.

If a man was a confirmed eunuch, the kinship appointed a cousin to procreate for him. This might be called the ‘harambee’ system of marriage.

Given the level of multiple relationships, informal polyandry already exists in Kenya as manifest in mpango wa kando (extra-marital affairs), sponsor and swinging couples phenomena. Is legalising polyandry then not logical, as proposed by Prof Machoko?

Should the polyandry law get passed in South Africa, there are likely to be demands for the same elsewhere.

Chances that our parliament would legalise polyandry are remote going by resistance in the 11th parliament to a man seeking the consent of an existing wife in order to marry another. For their nuisance value, the apparently bizarre proposals from Egypt and South Africa are good prompts for us to interrogate our marital laws for gaps that need to be addressed.

Polygamy

The Marriage Act allows men to choose whether to enter into a union that would enable them have other wives or not. Women do not have a similar option. The language of the Act is itself gender-biased.

The Act defines polygamy as “the state or practice of a man having more than one wife simultaneously”. This is linguistically incorrect. What has been defined here is polygyny. Polygamy means a man or woman having more than one spouse concurrently.

The definition therefore, ignores polyandry (one woman, multiple husbands), the second side of polygamy, and is deliberately crafted to favour men.

Moreover, the Act exempts women wedded under Islamic law, from mandatory registration of marriage. This means those who do not register have to prove their marriage during succession disputes. A similar exemption exists in the Matrimonial Property Act, which technically allows discrimination embedded in religious law with regard to division of property on termination of marriage. Furthermore, none of the current laws criminalises marital rape.

Another problem is that of contradictory laws.

Sharon Amendi brilliantly exposed this in the Daily Nation of September 2, 2021. The Marriage Act defines a legal marriage and, by default, the beneficiaries of a deceased man.

In contradiction, the Law of Succession Act recognises concubines and their children as beneficiaries. This invalidates the wife’s marriage certificate and posthumously converts a monogamous into a polygamous marriage. Thus, the wife is deprived of her husband’s property in favour of a stranger and is punished for the idiocy of the deceased. Do we need further prompting to review our marriage laws?

Dr Miruka is an international gender and development consultant and scholar ([email protected])