Attorney General Justin Muturi rejected the controversial Marriage Amendment Bill 2023, which is currently before Parliament, saying allowing divorce by mutual consent as contained in the proposal is not a solution to family disputes.
Mr Muturi in his submission to the committee on Justice and Legal Affairs says most of divorce cases take less than six months and parties involved represent themselves contrary to the assertions of the Bill that the cases are lengthy and expensive.
“A perusal of the court divorce files shows that the process is taking less than six months and many parties are representing themselves. Again, those contentious divorces where parties fail to agree shall remain costly and time-consuming,” Mr Muturi said.
The Attorney General told MPs that the proposal to allow divorce by mutual consent should be shelved and instead, Alternative Disputes Resolution should be encouraged to solve family disputes.
“We can both agree that discussions on allowing divorce by mutual consent should be shelved. Focus now shifts towards strengthening alternative dispute resolution in resolving family disputes, capitation of relevant institutions that handle family matters and formulation of policies and programmes to ensure the protection of and assistance for the family,” Mr Muturi said.
He also pointed out that the Bill affects Article 45 of the constitution which recognises family as a natural and fundamental unit of society and the necessary basis of social order hence must enjoy the recognition and protection of the State.
“Should we, therefore, lessen the requirements for dissolution of a marriage? Should we allow the parties to mutually agree to separate? In the interest of protecting the family unit which is actually the seat of the first integration of individuals into social life, divorce by mutual consent should be discouraged,” Mr Muturi said.
Mr Muturi told the committee that Article 45 (4) allows Parliament to enact legislation that recognises marriages concluded under any tradition or systems of religious, personal or family and divorce by mutual consent is not envisioned by the sub-article.
He further poked holes into the Bill saying since marriages registered under Section 6 of the Marriage Act, 2014 are done in accordance with a distinct faith, customs, rites and ceremonies, the dissolution of such marriages can only be guided by the same faith, customs and rites.
“For instance, a customary marriage can be dissolved under the same customary dictates and this excludes mutual consent. Similar scenarios are attached to Christian and Hindu marriages,” Mr Muturi said.
While the legal committee had in its report recommended the publication of the Bill with amendments, Rarieda MP Otiende Amollo, a member of the committee said the Bill should not be published.
Dr Amolo said the constitution preserves the institution of marriage and depicts family as a natural and fundamental unit of society and the necessary basis of social order.
“If passed, the proposal shall weaken the institution of marriage and family law,” Dr Amollo said in his minority opinion in the report.
So divided was the legal committee over the matter that only seven MPs out of the 15 signed the report.
The National Assembly on Thursday slammed a brake on the Bill sponsored by Suna West MP Peter Masara raising constitutional questions to the proposed legislation.
The lawmakers warned that by passing the law, MPs would be participating in encouraging an increase in divorce cases as many would get into marriages for the wrong reasons.
In addition, the lawmakers also expressed fears that young college and university girls risk being lured into marriages by the whites and then after one year are divorced.
There is also the fear that foreigners currently seeking work permits at the immigration which is coupled with long procedures and requirements before it is granted, may opt to marry a Kenyan, get the permit as a Kenyan easily then file for divorce.
Speaker of the National Assembly Moses Wetang’ula said he would give his final verdict on the proposed legislation after two weeks after several MPs raised concerns with the Bill.
“We have discussed the matter before the House Business Committee (HBC), this house as a representative of the people, has a fundamental duty to protect the institution of marriage. The moment we turn marriage into instant coffee then we are in serious trouble,” Me Wetang’ula said.
According to Standing Order 47, Speaker Wetang’ula has several options which he can turn to in dealing with including declaring the proposed legislation unconstitutional and therefore inadmissible
