The Marriage Bill, which was just signed into law, is not all about polygamy – even though most people tend to think of it that way. The bill is about women, their rights in a marriage, distribution of wealth and succession.
The Marriage bill sought to correct a few things in society, which were a bit skewed. Muslims could marry as many as 4 wives; Christians could not. However if a Christian who ascribed to traditional practices wished, he could add other wives under customary law. They would not have to be registered. This caused a lot of chaos when a man died because legally the other spouse did not exist and as such was not entitled to any inheritance in the court of law.
The Marriage Bill compels those married under customary law to register their marriage within 6 months. It also allows for polygamy across the board. Consent of the current wife is not needed. Previously the marriage act contained the following sentence “No married woman shall while her marriage subsists contract another marriage” the phrase has disappeared. What this means for women is that they will not be contravening the law should they choose another spouse – so the new bill does not explicitly ban polyandry.
Women fought for the law to compel the man to consult the current wife as it would allow the woman to make a decision in regards to the future polygamous marriage and whether she wanted to stay in it. Many women feel that they have lived for many years with a man, consolidated wealth together and there is a risk that a new woman will enter the scene and start sharing their hard-earned wealth. The issue was not about controlling behaviour; it is about sharing wealth.
Unfortunately, the law did not resolve the issue of sharing wealth. The law says that in the event of death spouses are entitled to 50% of the wealth acquired during marriage. This is still a vague statement – if one of the spouses in a polygamous marriage wants to exit, it is not clear how the property will be divided. The problem with Kenyan men is that they know the complications of having another wife so they tend to hide them away rather than have them in the open. The first wife will only find out about other spouses at the point of the man’s death.
Most of my experiences on polygamy have been horrible. My friend’s father passed away and at the burial site – a woman with a family appeared and demanded to be allowed to bury “her husband” at a different site. The already grieving family was traumatised and had to endure weeks of court wrangling before burial. In addition, they now had to go to court to fight to retain any inheritance they had received from their father. It would have been easier if the man had openly declared his intentions to marry another wife to his first family; they would have been better prepared. The new bill has not resolved the issue of disclosure.
Another thing that affects polygamous marriage is tribalism and cultural beliefs. If a man marries a woman who can’t have children, she will be treated very badly by her in-laws. The treatment is worse if she is from another tribe. If a man also marries a first wife from another tribe but a second wife from his own tribe then the man’s family will automatically favour the second wife. This is where the Marriage bill becomes important – it allows for recognition of all spouses equally – as long as the marriage was registered in accordance with the law.
The rejection of polygamy bill had little to do with Westernising Kenya and I think the Western world is largely just watching in amusement. Therefore I do not see the need to bring up Western sentiment in all of it. Marriage in Kenya and Marriage in the UK or the US are worlds apart and I do not believe that one would ever mirror the other. The Western world have their reasons why they prefer monogamy, Kenya has its reasons for legalising polygamy. In addition, polygamy has been in practice in both Kenya and the Western world for years and years, legalising it in either territory does not necessarily resolve the existing underlying issues in regards to women’s and spouse’s rights.
I will conclude by re-stating that the Marriage Bill is not about men versus women or tit-for-tat. It is about women’s rights and distribution of wealth in the family when it comes to marriage and as stated earlier it has not clearly resolved these issues.