AG Muturi's position on Marriage Act misleading

When the Marriage Act was enacted in 2014, it was hailed as a progressive harmonisation of disparate laws that also gave traditional marriages the same weight as those contracted under other regimes. One of its hallmarks was that all marriages must be registered, whether monogamous or polygamous.

The Act was not meant to be a millstone around the neck of Kenyans or a tool of coercion into or out of marriages that they did not wish to get into or stay in as it is being turned into, going by two examples in the last few weeks.

The first regards the reaction of Attorney General Justin Muturi to the Marriage Act Amendment Bill (2023) sponsored by Suna West legislator Peter Masara to allow divorce by mutual consent and make the process less acrimonious, cheaper and convenient. The logic is that if parties have agreed that their marriage is no longer tenable, they should be facilitated to end it.

In his wisdom, however, Mr Muturi and some legislators are persuaded that this would wreck the family based on its constitutional recognition as the “natural and fundamental unit of society”.  

Mr Muturi argued that mutual consent will not solve marital disputes, that divorce proceedings are currently taking less than six months (hence not protracted and expensive), and that the proposal would destabilise social order and ultimately the state.

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One wonders whether destabilisation of social order is reserved for only such cases. The constitutional argument is also disingenuous because this is a document crafted by human beings, and so it can likewise be changed. Moreover, divorce is allowed in the Marriage Act.

The Attorney-General further averred that those who registered their marriages under faith and traditional customs can be guided by the same in dissolving them. This is plainly misleading as the Marriage Act provides that divorces can only be granted by courts of law or the Kadhi in case of Islamic marriages. He also advised couples to resort to alternative dispute resolution, apparently not recognising that mutual consent is exactly that.

The notion that the family is natural insinuates that marriage is inevitable and compulsory for everyone, like birth and death. Nothing can be further from the truth. The family is actually a social contrivance. Otherwise, people who have engaged in a relationship resulting in a child should be presumed married. 

Marriage is a deliberate decision by individuals to enter into a relationship, not an emanation. Thus, it is not indissoluble. That is why the law provides for divorce. The saga also brings into question what constitutes a family, considering the various permutations such as single parent, same sex, cohabiting and adoptive formations. Are all these “natural”?

Unless he is from Mars, Mr Muturi should know that the family unit has been put in quite some disarray by many factors aside from divorce.  If people are living in an acrimonious relationship, there is obviously no social order amidst them and they are no longer a unit. Should they not then be facilitated to go their separate ways so that they and larger society can enjoy some peace?

Registrar of Marriages

The second issue concerns the Registrar of Marriages who requires parties intending to celebrate Christian marriages to submit birth certificates, national identity cards (or passports), death certificate and affidavit in case of widowhood, and an invitation card to the wedding ceremony. Applications are rejected should the names in the birth certificate not tally exactly with those in the identity card. This disregards the fact that many parents assign children several baptismal names which are eventually not included in their national identity cards.

The Registrar does not accept an affidavit on these variances. Ironically, it accepts affidavits in case of widowhood. This invites a simple question: What makes an affidavit acceptable in one case and not another? Is a sworn affidavit not a legal document? Does the Registrar of Marriages have power to invalidate it? Requiring an invitation card is also nonsensical, assuming as it does that Christian weddings must be attended by crowds.

The irregularities were recently laid bare in a High Court ruling by Justice Nyaundi Patricia Thande to the effect that the registrar’s role in Christian marriages is limited to receiving copies of marriage certificates issued by presiding pastors and not determining who can or cannot get married.

In essence, it is the pastor celebrating the marriage that determines its compliance with the requirements of the law. This means that the registrar has no business asking parties for anything and is only there to receive and keep in custody copies of marriage certificates issued by pastors. Hopefully, the Attorney-General will immediately streamline activities of this office and spare Kenyans further frustration.

 The writer is an international gender and development consultant and scholar ([email protected]).