In 1917 a man was convicted for the charge of being in possession of stolen property. His conviction was effected based on the evidence his wife gave claiming that she saw him holding the stolen property. What makes the R. v. AMKEYO (1917) 7 EALR 14 is the fact that Justice Hamilton in that case dismissed customary marriages and reduced them to a mere ‘wife purchase’ arrangement. He went on to say:
“In my opinion, the use of the word ‘marriage’ to describe the relationship entered into by an African native with a woman of his tribe according to tribal custom is a misnomer which has led in the past to a considerable confusion of ideas…The elements of a so-called marriage by native custom differ so materially from the ordinary accepted idea of what constitutes a civilized form of marriage that it is difficult to compare the two.”
He must have referred to customary marriages as ‘wife purchase’ due to the dowry/bride price that is usually offered by the family of the husband-to-be to the family of the wife-to-be as a form of appreciation. The bride price in many African tribes and cultures is mandatory. All things said and done Justice Hamilton was questioning the legality and morality of the African customary marriages in the eyes of common law. To him the native marriage ceremony was an exercise in an open air market where there is a willing buyer and willing seller.
Customary Marriages Recognized
After many years of living in the shadows of the ’wife purchase’ doctrine, customary marriages are now recognized by statute. The Marriage Act, 2014 (the Act) recognizes 5 types of marriages in Kenya: the Hindu marriage, Christian marriage and Civil marriage which are monogamous marriages while customary marriage and Islamic marriage are presumed to be polygamous or potentially polygamous.
Under the Marriage Act Section 43, customary marriage is to be celebrated in accordance with the customs of the communities of one or both of the parties to the intended marriage. Where the payment of dowry is required to prove a marriage under customary law, the payment of a token amount of dowry shall be sufficient to prove a customary marriage.
Authorisation to Marry By the Government
In the past customary marriages were not recognized by statute law and thus there was no registration required. Many couples would do the traditional ceremony in accordance with their respective culture which includes payment of the dowry and we had a man and wife, and everyone danced and made merry. The Marriage Act 2014 as however complicated things.
Section 44 of the Act makes it mandatory for the parties in a customary marriage to notify the Registrar of such marriage within three months of completion of the relevant ceremonies or steps required to confer the status of marriage to the parties in the community concerned. Section 45 goes on to add that on the notice of intention to marry the parties must specify the customary law applied in the marriage of such parties; and contain a written declaration by the parties, that the necessary customary requirements to prove the marriage have been undertaken. The declaration shall contain the signatures or personal marks of two adult witnesses and each witness shall have played a key cultural role in the celebrating the marriage. The notification should confirm that;
- That the parties to the marriage were eighteen years of age at the time of the marriage;
- That the marriage is between persons who are not within a prohibited marriage relationship; and
- That the parties freely consent to the marriage.
On the 9th of June, 2017 the Attorney General through the Kenya Gazette gave a notice of the commencement of the Marriage (Customary Marriage) Rules, 2017. Those already married under customary marriages are now required to register their marriage starting 1st of August, 2017. Parties who wish to contract a customary marriage must obtain prior authorization from the Office of the Registrar of Marriages and now for the first time, parties will be awarded marriage certificates.
It will be great to see many couples especially in rural Kenya being formally recognized by the State by being presented with a customary marriage certificate after many years of living in the shadows of the ‘wife purchase’ doctrine by Hamilton J. Thousands of couples will no longer need to swear affidavits for the purpose of among other things including their spouse in a medical cover. After 100 years we can now dance at Justice Hamilton’s grave.
BY FELIX OMBURA
This article appears in our digital law newsletter, The Deuteronomy Vol 6, Issue 4 of June 23rd, 2017
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