Has the Kenyan Marriage Bill undone endeavors to protect the rights of women in a democracy?

Kenya’s Marriage Bill 2014, signed into law by President Uhuru Kenyatta, legalizes the act of polygamy. The law gives men the right to enter multiple marriages, without having to consult their existing spouses or obtain their consent.

The bill has been met with intense censure from religious leaders, who claim it violates any sense of equality that exists within a marriage, and women’s rights groups, who decry it on grounds that the law disempowers women.

In response to these disparaging comments, Junet Mohammed, a member of the Kenyan parliament, justified the removal of a clause that required a wife’s consent. Mohammed argued that, in Africa, a wife “must know” a second is on the way and so any legal requirement of consent is futile.

Aside from being a poor justification, the fact that the law reflects a disturbing tendency of lawmakers to disregard the basic human right of women to live in dignity, with equality, has been ignored.

Ironically, the Marriage Bill had been initiated to provide more rights to Kenyan women. This objective may have been fulfilled in reforms regarding the share of property a woman is entitled to, but it has failed to uphold universal principles of equality on two counts.

Cementing Inequality

The first is manifested in the sole right of men to have more than one spouse, while this right is abjectly denied to women. The law was introduced to legitimize an age-old and commonly practiced exercise in Kenya and prevent unofficial marriages. Despite its cultural backing, polygyny has been noted as a means by which patriarchy is enforced upon society, with women being exploited and subjected to this enforcement. Laws that permit polygamy but only to the extent of polygyny are indicative of a society that approves of an imbalance of power between men and women.

In a state that calls itself democratically governed, laws of this kind are unacceptable. Legalizing only polygyny perpetuates the notion that women are like collectible economic assets that exist for purposes like childbirth and the production of food, instead of recognizing them as humans.

It is the duty of each government to ensure they do not infringe upon the rights of individuals in their legislative processes. The Kenyan government, however, has fallen far short with the Marriage Bill. 

These are notions that women’s rights activists have fought to overcome and their efforts have clearly been undone in this move by the Kenyan government. Far from providing the intended relief to victims of unofficial polygamous marriages, this law has toppled the status of women in Kenya by sending a misogynistic message of exploitability to society. The laws of a country should fight existing social barriers and stereotypes, and act as stimulants of change in a society. Considering the shocking gender gap in Kenya, the government has failed to achieve this fundamental objective of democratic lawmaking. Instead, it has damaged sacrosanct constitutional principles of equality.

Disregarding Women’s Rights

Secondly, and most importantly, the non-requirement of consent denotes an absolute lack of respect for a woman’s rights within a marriage. The modern interpretation of the institution of marriage is that both partners are considered to be equal, but the Marriage Bill unabashedly undermines this idea. By refusing a wife the ability to consent to her husband’s second marriage, she is relegated to second place, while her husband is established as the most powerful person.

Far from ensuring equality, the Kenyan government has firmly established a sense of male superiority in a family and, correspondingly, in the nation. A second marriage would also involve sharing the family’s resources between at least three people, as a second wife would typically reside in the same house as the first. To take away a woman’s right to accept or deny the entry of a completely new person into her marriage and household automatically places every single wife in Kenya on a lower pedestal than her husband, stealing her right to equal protection by law.

This is not the first time a country has laid down such regressive laws. Earlier this year, the Council of Islamic Ideology in Pakistan also upheld the nonessential nature of a woman’s consent regarding her husband’s second marriage. Modern democracies are built on principles of ensuring mutual respect and understanding toward each other. However, the law clearly violates this by legitimizing disrespect to one’s wife and certifying that power in society is ultimately male dominated.

Even in India, the constant refusal to criminalize marital rape is indicative of how we view married women as property, exclusively owned by their husbands to be treated and mistreated at their fancies. 

Democracy Has to Uphold Equality

These failures demonstrate that the so-called reforms are a façade that cover up the ominous undercurrent of patriarchy and sexism in 21^st century lawmaking. This denial of the right to consent to crucial decisions within a marriage also seems to represent the general attitude of lawmakers toward the concept of a woman’s voice.

Even in India, the constant refusal to criminalize marital rape is indicative of how we view married women as property, exclusively owned by their husbands to be treated and mistreated at their fancies. Despite having been passed in democratically elected legislatures, what these laws truly signify is murky male chauvinism that still exists in the corridors of hallowed legislative bodies.

Over the last few decades, the feminist movement has gained immense momentum and the status of women around the world has rapidly improved. Much legislation has been passed that seeks to protect women by expanding definitions and imposing harsher punishments. It is the duty of each government to ensure they do not infringe upon the rights of individuals in their legislative processes. The Kenyan government, however, has fallen far short with the Marriage Bill. The government’s actions threaten to undo the work that has gone into promoting gender equality and reducing the gender gap.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

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