In Summary
  • Kamba customs allow women who have no sons to “marry” other women out of fear that the family’s continuity is at jeopardy if there is no male child.
  • The senior resident magistrate handling the matter could not issue any orders, noting that this is a same-sex marriage that is alien to Kenyan laws.

All of a sudden, Josephine Ndulu’s voice drops. Subsequent words betray the turmoil within her.

As she discusses her troubles, her melancholic tone makes one wonder: Could her life have been better had she not agreed to be married to another woman in 2005 as per the Kamba traditions?

It is not a good life she leads now. The plot on which her tiny house stands in Masii, Machakos County, has already been sold.

The buyer gave her an eviction notice to evacuate by January 31 but somehow she is still there, hoping against hope.

Moreover, she risks sleeping hungry alongside her young children everyday unless they toil hard on people’s farms or break their backs washing clothes to get them just enough money to live by.

DIVORCE

All that is because Angela Nyamai, the woman who “married” her 14 years ago, currently does not want anything to do with her.

Josephine, on the other hand, does not want to leave the marriage. She says she has “wasted her youth” in that union and cannot go back to her parents to bother them.

Interestingly, the elders of their Amuumoni Mbaa Kimu clan back Josephine. It is a situation that has drawn attention to the age-old Kamba iweto tradition where a woman marries another.

Much as the customs allow the practice to date, rarely did such unions break up, which has left elders and government officials wondering: How should a woman married to another woman be divorced? And does she have any entitlement?

So bad is the situation that it led to Angela filing a divorce case in a Machakos court in 2016, seeking to disband her “marriage” to Josephine but to be granted custody of the latter’s children.

MARRIAGE ACT

The senior resident magistrate handling the matter could not issue any orders, noting that this is a same-sex marriage that is alien to Kenyan laws.

“In my view, the dissolution of such a marriage ought to take the traditional form just like the way it was contracted.

"Parties to such a union cannot move the court for dissolution of their marriage,” ruled Machakos Senior Resident Magistrate Yusuf Shikanda on the conclusion of the case on October 29, 2018.

“The nature of the marriage is not governed by the Marriage Act. It is inconsistent with the institution of marriage as envisaged by the Marriage Act as well as Article 45 of the Constitution,” the magistrate noted.

In early 2005, Josephine did not have such huge issues bothering her. She was a mother of four then, still living with her parents.

Then Angela came her way. Because Angela’s only biological child is a girl, she wanted someone to continue the family lineage.

FAMILY LINEAGE

Kamba customs allow women who have no sons to “marry” other women out of fear that the family’s continuity is at jeopardy if there is no male child.

That is how Josephine, now 43, left her parents’ home in Makueni County to get “married” to Angela, an elderly woman.

From the time Josephine agreed to move in, whereupon dowry was paid to her parents, she would address Angela as “mother” while she would call Angela’s husband Munyao Kilonzo “father”.

One of the elders of the clan told Nation that in such an arrangement the woman married to another woman is considered as the wife of the son she never had; and as such Josephine having sexual relations with Angela’s husband was out of question.

“She does not become a wife but a stepdaughter,” explained the elder. “She’s not allowed to have sexual relations with the man of the house.”

CHORES

The “wife” is however allowed to sleep with any other man from the locality. Josephine did just that and that is how her fifth child, a boy now aged 11, was born.

In late 2005, the family patriarch Munyao Kilonzo died, leaving behind a big family. Besides Angela, there was a first wife who had nine children, five of them boys.

Angela was the second wife and because she only had one daughter, she “married” two women.

The first woman she married was moved from her main house in 2005 when Josephine came in.

She has five children and lives several hundred metres away from Angela’s house.

Like her co-iweto, Josephine has five children. They are aged between 11 and 23 and the community considers them Angela’s grandchildren.

Josephine’s duties as an iweto were to ensure the “mother” was comfortable by doing all house chores and running any errands.

ACCUSATIONS

All seemed rosy for Josephine at first, but it did not last long. She says there was tension in her relations with Angela’s only biological daughter, which has increased over the years.

Josephine says the rift escalated when she questioned why Angela’s daughter was selling property, even the one she was supposed to inherit.

Around July 2016, Angela relocated from her matrimonial home where she was living with Josephine and went to live with her daughter.

It was the same month that Angela filed the divorce case at the Machakos court.

In the suit, Angela stated that Josephine had, among other things, insulted and quarrelled with her for flimsy reasons; for instance, that she had refused to cook for her, threatened to harm her and was “having sexual relations with strange men” at her house.

The case struck Josephine hard. The court demanded that she gets a lawyer to respond to the suit. At the time she was struggling to raise fees to take one of her children to Form One.

LAWSUIT

Her mother sold a bull that was being used to till land and used the proceeds to hire a lawyer. In her defence, Josephine denied any cruelty.

“She averred that a dispute arose after (Angela) sold off a portion of the matrimonial property without involving Josephine or seeking her consent,” the magistrate said in his summary of the proceedings.

Josephine further sought a permanent order stopping Angela from selling the land without consultation. The magistrate however returned the ball back to their court.

“There is no legislation that recognises same-sex marriages such as the union herein. The marriage herein is purely based on Kamba customary law. The customary marriage recognised by the Marriage Act is one involving the union of a man and a woman,” he ruled.

After the judgment, Angela’s side approached local representatives of the national government to get clearance to take a goat from Josephine’s side and slaughter it to signify divorce as per the Kamba customs.

CEREMONY

The clan’s representatives however said they do not recognise the slaughtering of the goat as having officially vitiated the woman-to-woman marriage.

According to Mr Geoffrey Mutua, the acting national secretary of the Amuumoni Mbaa Kiimu clan, the elders were not consulted as norms dictate.

“We should have known about it as members of the clan. We don’t know who went there and whether or not they are from our clan,” Mr Mutua, 53, said.

Josephine added that she should have been an integral part of the ceremony.

What irks the community elders more is that Angela and her daughter have refused to attend meetings aimed at reconciling the women.

“Let her return here we solve those matters. And we will return to court until justice is done,” Mr Mutua said.

SOLUTION

On January 17, the elders wrote a letter to the Machakos chief magistrate’s court saying Angela’s side was frustrating efforts to obey Mr Shikanda’s directions.

They noted that more parcels of land had been sold and that there had been an effort to demolish the house where Josephine lives.

“The home compound where (Josephine’s) house stands has already been sold by (Angela),” they wrote.

The Nation visited Angela at her daughter’s home on Monday for a comment on the matter but she declined to comment.

She later referred us to her lawyers. Her daughter did not respond to our calls or texts.

The area chief, Ms Salome Mutisya, said the dispute can only be solved when Angela gives Josephine a portion of land.

“Their relationship had broken down so much that they can’t stay in one house,” said Ms Mutisya.

“As the chief, I’ve been telling Angela that she can’t have married Josephine for more than seven years, during which her kids have grown up, then wake up one day and tell her to go. Where will she go?” She posed.

ADOPTION

The chief also advised the clan to file an adoption case in court as a way of securing Josephine’s interests.

“They ought to file an adoption case because it’s as if Angela adopted Josephine. Josephine can file a case claiming her share because she has stayed there for more than seven years,” she said.

Ms Mutisya said iweto is a common phenomenon in her area of jurisdiction and elsewhere in Ukambani.

“But we have never seen a person who got married then they split, because she was married to help continue the lineage,” she said.

The chief admitted that the current state of affairs keeps Josephine at risk, but called for an amicable solution.

“As per the law, we (the government) have no basis to go to someone’s homestead to evict someone or to separate people,” she said.

RELIGIOUS

Josephine said she has been living a troubled life. “I live in fear as I am staying alone with my children. I get scared whenever I see a vehicle approaching the homestead because she (Angela) once said that she will tear down my house,” she told Nation.

Yesterday, the strife escalated when Josephine returned from her normal tasks to find a pile of stones and cement at her doorstep.

“I can only open the door upon climbing over the materials,” she said. “And I’ve not been told a thing.”

But despite her tribulations, and the apparent contradiction between the marriage she entered and the virtues of Christianity, Josephine is an ardent choir member at Kithangaini Catholic Church.

She spoke to Nation after mass at the church. “I love God all the time and I love singing for him. Whenever I’m singing, all my stress melts away. Even in the morning I play songs so I can be in the praise mood,” said a resolute Josephine.