In Summary
  • Provisions stipulating that a partner can sue for failed courtship thrown out
  • No sex? See you in court, new law says

It will now be possible for a husband or wife to obtain a court order obliging their partner to give them their conjugal rights.

This provision is contained in the Marriage Bill that was passed by MPs on Thursday night.

The debate over whether it is possible for the court to ensure that those rights are enforced was among the heated points in the last stage of the Bill, which lasted for more than four hours and necessitated an extension of the sitting.

The suggestion to remove it was made by Mr John Waiganjo (Ol Jorok, TNA) on the basis that it is almost impossible to enforce such a court order.

Mr Waiganjo argued that because this category of rights is enjoyed in privacy “where spouses retreat to their quiet chambers,” it could actually end up encouraging marital rape as the partner demands their right while wielding a court order.

“If the court gives this kind of an order, then either the husband or wife may move to the house with their order and purport to enforce that order, therefore raping the other party,” he said, saying MPs could sanction marital rape.

But Justice and Legal Affairs Committee chairman Samuel Chepkong’a told his colleagues that the team was split on whether to support Mr Waiganjo’s amendment but had voted to keep it in the Bill as originally drafted.

He said removing it would be contrary to other parts of the proposed law that cite the denial of conjugal rights as part of the evidence of cruelty that can be used as grounds for divorce.

But Mr Peter Kaluma (Homa Bay Town, ODM), another member of the Justice and Legal Affairs team, argued that the law already provides for the enforcement of an order for the restitution of conjugal rights.

“The one most serious facility in a marriage is this conjugal right. So, really, we must enforce it and for those members who fear, under Order 22 of the Civil Procedure Rules, we have several provisions dealing with how you enforce conjugal rights. It is in our laws so don’t worry about enforcement. The one thing that we must have in a marriage is this facility. It is very important,” said Mr Kaluma.

Mr David Kiaraho (Ol Kalou, TNA) however insisted that even with a court order, “if the heart is not there, it is practically impossible.”

He was supported by Ms Mary Emaase (Teso South, URP), who argued;

“I want to support the withdrawal of this provision because how would you justify or prove whether you have actually withdrawn conjugal rights? It is ambiguous in itself and should therefore be deleted.”

Kanduyi MP Wafula Wamunyinyi was more forthright, saying he was opposed to the deletion because “the only rights the couple has is this right to enjoy.”

Majority Leader Aden Duale was also opposed to the deletion on the basis that sex enables procreation, which he said, according to the Bible and the Quran, is one of the main reasons even religion advocates for marriage.

Without numbers on his side, Mr Waiganjo’s suggested amendment was removed and if the President assents to the Bill, both partners will have the right to obtain a court order obliging their partners to give them their conjugal rights.

This was one of the high points in the Bill considered so important that the House had to extend its sitting up to a few minutes past 8 pm from the usual 6.30 pm. With the House having finished the clause-by-clause scrutiny and amendment at the Third Reading, the Bill’s passage is a forgone conclusion because all that will be done on Tuesday afternoon is a final vote by acclamation without any debate.  

In the course of the often heated debate, the National Assembly managed to discuss almost every aspect of marriage, from courtship to what a man ought to do when he wants to marry additional women to when the relationship breaks down and whether it is possible to enforce an order for the restitution of conjugal rights.

At one point, way past sunset, women MPs stormed out in anger at their male colleagues for pushing through changes making polygamy open and gathered at the media centre for a press conference that didn’t happen. They returned to the chamber.

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