My husband says he can’t talk about his job because he signed a non-disclosure agreement. He comes home very dirty and sometimes with some scars. Surely, as his wife, don’t I have the right to know? Am I not excluded from the NDA?
Nondisclosure agreements (NDAs) are legally binding documents designed to protect confidential information from being shared with unauthorised individuals. These agreements relate to Article 41 of the Constitution, which addresses the right to privacy, but specifically function as contractual commitments between contracting parties. NDAs may also be included as clauses in marriage contracts or other social or business relationships. It is important to understand that marriage is a social construct, which is a framework built upon societal values to create and sustain families and kinships. Typically, marriage is based on relational principles such as love, trust, honesty, and care, which are often influenced by cultural and religious beliefs.
These principles are then formalised in law to minimise potential abuse and violations. While marriage is an institution, it does not control other relationships that may develop from it, especially those entered into by its parties. This is so despite the provisions of Article 45, Clause (3) of the Constitution that grants equal rights to both parties at the time of marriage, throughout its duration, and upon its dissolution.
The most basic yet essential principle of nondisclosure agreements is the commitment to keep information confidential. Experts agree that a fundamental aspect of marriage is sharing joyful moments and challenges with the same level of commitment, including exchange of pertinent information. Both elements are crucial within their jurisdictional context, and may not substitute each other. This principle explains why, as a spouse, there is no automatic right to access all of a partner's private information, especially when it falls outside the range of marriage obligations. This limitation, given some circumstances, is one reason why emotional interoperability between spouses may be discouraged.
It is essential to understand why your husband does not share anything with you, even regarding the unexplained scars he has when he comes home. While nondisclosure agreements are governed by specific laws, such as contract law and certain principles of equity, this does not mean that disclosure is entirely impossible. In an employment context, nondisclosure provisions must meet a legitimate interest test.
This includes detailing the complete confidential information, the duration for which the information must remain private, the definition of who may consult about the information if disclosure becomes necessary, and the clear obligations of the parties involved in the nondisclosure agreement. These scenarios have been addressed in two cases.: the LG Electronics Africa Logistics FZE vs Charles Kimari (2012) and Dedan Maina Warui & another vs Safaricom Limited (2014).
Exercising your right to unveil a nondisclosure agreement can involve specific aspects of the law, but it requires meeting a significant evidentiary threshold. According to Article 35, Clause (1), Paragraph (e), you must prove in court that the information held by another person is necessary to exercise or protect another right or fundamental freedom. The specific right or freedom you may invoke largely depends on what is outlined in the Bill of Rights and how it relates to the impact on your general health or state of mind, as well as that of others, who may be critical part of the marriage.
You may reference Articles 45 and 28 as supporting evidence. Clause (1) of the former brings about emotional well-being, and family tranquility, recognising the family as the natural and fundamental unit of society, and primarily being the necessary basis for social order. It should also receive protection from the State, while the latter guarantees the right to inherent human dignity.
Scars may be indicative of unseen or unspoken-about unfair or illegal labour practices. You may wish to refer to Article 41 of the Constitution, which speaks to it. Employers might have challenged this perspective in the past, citing a lack of locus standi due to nondisclosure agreements. However, this has been addressed by Article 22, Clause (1), which grants every individual the right to initiate court proceedings if they believe their rights or fundamental freedoms, as outlined in the Bill of Rights, have been denied, violated, or threatened. In this situation, the fundamental right you assert is found in Article 45, which pertains to family rights. It is also possible that you may want to invoke the principle of equity, particularly if you suspect that your husband is involved in some risky or questionable business or employment. An interface of two maxims applies: Equity that does not permit a statute to be used as an excuse for fraud, and that which seeks to achieve complete justice. These maxims are critical in pursuing transparency and disclosure. In today's context, this could be similar to whistleblowing.
