New directive by Attorney General turns chapter for customary unions


lurazaxmbstspst95940c74e7c8d5 New directive by Attorney General turns chapter for customary unions

Joseph Mibei, a resident of Njoro, has been married for the past 30 years and has six children with his wife, Jane Cheptoo.

By Mr Mibei’s account, the marriage, conducted under customary law, has been a happy one.

As is common with marriages conducted in this manner, the couple has no marriage certificate to prove their union, a scenario set to change given the recent order issued by Attorney General Githu Muigai to have all customary marriages registered starting August 1.

While Prof Githu’s announcement is in keeping with requirements of the Marriage Act 2014, Mibei, like many other couples interviewed for this story, sees little sense in the new demands.

“I have been married under customary law for almost 30 years and my eldest daughter is even married. It is hectic to bring in such laws whereas we have been living a happy married life,” Mibei said.

Marriage rites

His daughter, who is newly-married, also followed customary marriage rites.

But Kimaiyo Towett, a resident from Marioshioni, applauded the move, saying it would help reduce the cases of street families.

Mr Towett, who has been married to Janet Towett for 20 years, said he welcomed the move and would register their union.

However, Kipsigis Myoot Council of Elders chairman Paul Leleito felt the requirement would lock out couples who did not understand the need to register their marriages.

“This new Act will cause more confusion especially for couples living in rural and remote areas where the majority adheres to customary marriage laws because that has been the tradition for years,” Bishop Leleito said.

And Kikuyu Council of Elders chairman James Ngethe said the new law might never address inheritance wrangles.

“The only way to combat challenges that come with inheritance is to enlighten couples on the need to write down their wills and allow polygamy,” said Mr Ngethe.

George Manyasa , a boda boda operator in Kakamega County, said the public should embrace the idea of registering customary marriages as it would make partners stick to their unions.

“I have been married to my wife for more than 16 years now. But we do not have a marriage certificate. Her parents just wrote me a note, which I have treasured to date. If a marriage certificate is introduced, I will formally register my marriage with the Registrar of Marriages,” Mr Manyasa added.

Marsel Masinjira, however, faults the law and wonders what will happen if one partner is unwilling to get the certificate.

“My husband has never wanted to visit my parents despite numerous attempts even by his in-laws, but he appears only during funerals,” Ms Masinjira said, adding that many wives would need to convince their husbands to register their unions.

Rose Madaga also faulted the directive, saying there were many partners in such unions, especially men, who wanted their marriages to remain a secret.

Juliana Anyango feels it is another plot by the Government to raise money from the public.

“This is campaign season and the need for politicians to raise money is ripe. It is no surprise that the Government could be out to raise money by registering all customary marriages countrywide,” Ms Anyango said.

An elder of the Shokoto community in western Kenya, Andrew Ongayo, said it was a good directive whose implementation was necessary.

And Bishop Simon Oketch of Anglican Churches of Kenya Kakamega said the directive targeted Christians.

Eric Njagi, 26, a Nyeri resident, complained that the Government was making marriage a costly affair by imposing conditions that would force residents to part with more money to make their unions official.

At a time when Kenyans are struggling to cope with the increased cost of living, residents would be forced to part with Sh2,600 to formalise their unions with the State.

Zachary Ndirangu, 36, complained that the directive would present a challenge in case there was a need to nullify the marriage.

“It is a good thing but why do we have to pay?” he said, adding, “That would make it more difficult to nullify the marriage if it doesn’t work out because we will have to go back to the Government so the divorce can be made final.”

According to the gazette notice published last Friday, traditional marriages that are not registered will be considered invalid.

But Wachira Mwangi, a barber in Nyeri, countered the State directive as disregarding the value of tradition and custom.

“Paying bride price should be the only requirement for a customary marriage because even when the marriage does not work out, sometime the man can ask for his bride price back,” said Mr Mwangi.

When Mathias Njeru and Stacy Kanini decided to formalise their union in 2012, they opted for a customary marriage as it was less tedious, by Mr Njeru’s words.

Njeru said they met in 2010 in Meru County but because he was “not such a church-going person”, registering their marriage at the Attorney General’s office seemed more apt.

Meanwhile, Njuri Ncheke elder Josphat Murangiri said marriage was voluntary and everything must be done to facilitate its registration under customary law.

“We do not need a situation where the requirements act to discourage those who want to go the customary way. Actually, it should be almost free, with just a little charged for the certificate,” said Mr Murangiri.

Luo Council of elders chairman Opiyo Otondi said the council had convened a meeting to discuss the matter, while former Law Society of Kenya Western region chairman Richard Onsongo faulted the directive, saying it ignored public participation.

Uphill task

“The intentions of the directive may be good, but it may prove an uphill task to implement. People ought to have been involved and sensitised so that they can understand its benefits,” said Mr Onsongo.

According to the lawyer, customary marriages depend on a couple’s consent and no amount of registration can make them valid.

Even though he noted that the coerced registration may not interfere with existing marriages, it also may not achieve its objectives as envisioned by the State.

Eldoret Catholic Diocese Bishop Cornelius Korir said the Church was never consulted in the crafting of the Act and wondered why the AG wanted to impose the law on citizens.

And North Rift Council of Imams and Preachers chairman Sheikh Abubakar Bin said citizens were grappling with tough economic times and introducing such restrictions would see most eligible people shying away from marriage.

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