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.

Even Mr Duale, the leader of what Mr Midiwo calls a “super-majority” had to eat humble pie and withdraw a raft of amendments he had prepared to make sure Muslims are not affected by the law.

Male MPs also pushed successfully for the removal of a provision that would have given heartbroken lovers a chance to seek compensation if a partner who had promised to marry them changes their mind.

The legislators argued that because the Bill was already clear that a promise to marry is not legally binding, it would not make sense to turn around and then provide for ways for victims of broken engagements to seek their pound of flesh from their former partners.

When the Bill was published, lawyers said this provision was to make it possible for a man or woman who feels they have invested in a relationship to the extent that they deserve to be paid back when the relationship ends.

The provision was one of the most popular when the Bill was published in July last year but MPs saw it as seeking to legislate courtship and likely to have court corridors jammed with people seeking compensation from their former lovers.

Mr Waiganjo was again the author of the amendment to remove the clause on the basis that if retained, “our young men and women who are courting” would be in trouble.

“Courting does not necessarily end up in a marriage. If they break up and the courtship level, it means that one of them may proceed to court and claim damages. This is penalising courtship,” he said.

He had the support of Deputy Minority Leader Jakoyo Midiwo, who was among the less than 50 MPs who stayed in the House for the four hours it took to discuss the last stage of the Bill’s progress.

On the broken promise to marry, Mr Midiwo went back to his roots, where a promise to marry precedes courtship and can be broken upon further investigation of a woman’s background.

He said; “Where I come from, courting is not these town things and when you engage in courting, you may get to know a while later that you are courting an evil person. She may be a night runner so you must have the right and reserve the right to back off so that the witch does not come back and damage yourself.”

But some men protested, with Mr Junet Mohammed (Suna East, ODM) arguing that the provision could come in handy in instances where a gift such as land or a car is given on the basis of a promise to marry. It would then need to be returned incase of a break-up. But the tide was in the other direction, with Majority Leader Aden Duale saying the deletion would be a blessing.

“This thing would have become a serious business in our country. The Bible and the Quran tell us to be respectful and create the institution and family. If this thing goes that way, so many members of this House will even lose their property because they make a lot of promises every day. Every day at the rise of the House they make promises to a lot of people. Not only the men-both male and female. Why do you pay for something that is trial and error?” he asked.

Mr Waiganjo’s amendment was eventually passed despite the high-pitched Nays from the women, who had stormed out when their colleagues outvoted them and opened the door for polygamy, but then came back

No union of relatives

In its general provisions, the Bill defines marriage as “the voluntary union between a man and a woman whether in a polygamous or a monogamous union and registered according to the Act.”

Setting the minimum age of marriage at 18 years, the Bill names the kinds of marriages as Christian, Civil, Customary , Hindu , Islamic and marriages by other faiths or groups.All marriages can be registered and a certificate of marriage shall be issued upon registration.

Registration of customary marriages is to be done within six months of the marriage after completion of the necessary rituals for the union and the couple shall appear in person before the director to be issued with the certificate of marriage.

If enacted, the new law says parties to a potentially polygamous marriage can convert to monogamous marriage.

Marriage between relatives is prohibited.