Marriage Law Debate: Are Kenyans Inherently Polygamous?

“Since we became independent and in the 10 lives of the Independent Parliament, we have not found time to legislate over our families. One could almost ask whether our independence has not just been skin-deep if we have not bothered to liberate our families from dictation by such colonial relics as the family Laws of 1962.”
– Judy Thongori, a leading Family Law practitioner

The history behind the failed attempts to enact a comprehensive Marriage Bill in our country is something former law lecturer, now Deputy Supreme Court Justice Nancy Baraza once termed as ‘very sad indeed’. It is no secret that both the 1970 and the mid-1990s parliaments shelved the bill because of their strong opposition to the proposed criminalisation of adultery and the non-recognition of polygamy. See, polygamy in particular is deemed to be part and parcel of “african” culture ergo any Western law that went against this was considered “Un-african”.

So now, thanks to Nancy Baraza and the good folks over at the Kenya Law Reform Commission, we now have a new Marriage Bill. A Bill that doesn’t criminalise adultery and expressly recognizes polygamous marriages. The question I would love to be answered by our women is whether a declaration by their spouse-to-be that their marriage is potentially polygamous would deter them from getting married in the first place? And perhaps more generally, does this provision promote/condone promiscuity by men in society?

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