I am aware that the law protects spouses from testifying against each other. My job is sensitive and often, I am required to sign Non-Disclosure Agreements. However, some activities such as travel interfere with our family schedule and I feel my husband has a right to know what I am up to. Legally, does the NDA include keeping information from my husband?
The issues you have raised are similar since they deal with confidentiality. Generally, the issues are legally distinct, differently designed and unrelated in purpose. First is the Non-Disclosure Agreement. Non-disclosure Agreements are known as Confidentiality agreements. They are legal contracts that protect disclosure of sensitive information.
Those who sign non-disclosure agreements commit to keep the information in question secret, similarly consent to the consequences, often stated in the contract, should a breach occur. If implemented to the letter, Non-disclosure agreements are prescriptive whose purpose is to ignite fidelity between parties to keep certain information discreet.
Does this include not sharing such information with our spouses, friends, colleagues and relatives? Unless stated in the terms of reference to whom such information should be or not shared, confidentiality carries no segregation parameters or exemptions.
The second issue is whether a spouse can stand as a witness before a court of law, in a matter where their partner is in the dock. In this regard, the law makes reference to the concept of competency of a witness, which is captured under Section 125 of the Evidence Act, laws of Kenya.
A competent witness is one with sufficient mental capacity to perceive, remember, and narrate the incident he or she observed. Such a witness must be able to understand and appreciate the nature and obligation of an oath to give evidence in a matter before a competent court.
Section 125 (1) of the Evidence Act states “All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether of body or mind) or any similar cause.” Further, at Section 127 (1), the law clarifies that in Civil matters, parties to a suit, and the husband or wife to any party to the suit shall be competent witnesses.
In criminal matters, it is provided that every person charged with an offense, and the wife or husband of the person charged, shall be a competent witness for the defence at every stage of the proceedings, whether such person is charged alone or jointly with any other person, provided that: such charged person shall not be called as witness except upon his or her own application, as stated at Section 127 (2-i). Further at Sub-section 2 (ii) a spouse of a charged person shall not be called as a witness, not unless the charged person makes such an application before the court under which he or she is charged.
However, there are exceptions given in law where the spouse, without consent, can be compelled to testify in a court of law. Such moments are defined under Section 127 (3) as follows: in criminal proceedings, the wife of husband of the person charged shall be a competent and compellable witness for the prosecution or defence without the consent of such person, in any case where such person is charged with the offense of bigamy: offenses within the framework of Sexual Offenses Act: and in respect of an act or omission affecting the person or property of the wife or husband of such person or the children of either of them, and not otherwise.
With regard to the foregoing discussion, legally spouses have a right not to testify against each other. In some jurisdictions, this is known as spousal privilege. The threshold of this privilege has been explained under Section 127 and 125 of the Evidence Act. What must be remembered is that a spouse in this context means that whom the law can ascertain as married.
Marriage in accordance with the Marriage Act of 2014 at Section 3 means, a voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with the Act. It should therefore be understood, that before a court of law compels a purported spouse to be witness, the institution of marriage must be proved.
Where there is no registration, then the presumption of marriage will be invited and proved. In the Criminal Case number 51 of 2017, Justice Edward Muriithi, asserted that the privilege of a spouse not to testify against their spouse can only stand when there is proof of marriage.
The marriage must be subsistent at the time of the alleged offence to which the spouse seeks to give their testimony. While, it is a bit far-fetched to relate your work Non-Disclosure Agreement and the spousal privilege, it should be clear that the Evidence Act has provided the mechanisms and circumstances under which spouses can or cannot testify against each other.
Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]
