polygamy vs bigamy

[Deleted]

Are folks bothered by this story?

Why is this woman being criminalised?

This is a glaring example of the way in which the Kenyan State upholds male privilege while imposing sanctions such as these on Kenyan women.

Don't men get to have as many partners as they want with impunity and legitimacy under the law? She wasn't even having simultaneous and irresponsible relationships with her first and second husband as do so many men where they have children to whom they never tend even when they are swimming in $$.

www.nationmedia.com/dailynation/nmgcontententry.asp?category_id=39&newsid=88059

The Kenyan president himself has those two women. For the sake of keeping up appearances and because he fancies himself a good catholic and modern man he leaves his second wife Wambui and their daughter in a zone of murky and shadowy illegitimacy. All the while she ensures and rightly so that she is in the epicenter of the power play that happens in that family and unfortunately in the country. Isn't she the activist?

www.eastandard.net/hm_news/news.php?articleid=1143963106

[aeichener]

As I wrote in a parallel thread:

Ah, what societal and legal hypocrisy. The Bureau of Double Standards, Kenya's most important national institution.

Alexander

Update:
Kenyan solution: "the file is missing!"

www.eastandard.net/hm_news/news.php?articleid=1143963291

[Deleted]

Wapi FIDA?

Wouldn't this be an excellent case for test case litigation? Or are we going to sit and watch this woman go to prison.

[job]

I notice the silence on this issue. Only a missing file stands in the way of this poor woman heading for a 5 yr sentence in prison and we are all sitting watching,...including FIDA. The court was otherwise swift in executing/disposing this case.

The do-nothing attitude and screaming hypocrisy that has kept our society oppressed for 40-something years is right here in full display. It's just ok for Muthee Kibaki to switch an on and off button for wife #2 when convenient but it's prison time for sister Jeptoo to walk out of a marriage and seek another partner of her choice.

I don't even want to bring the Katiba controversy here, but its sometimes frustrating to talk of change in Kenya. It seems everyone doesn't care until trouble knocks on their doorsteps.

Otherwise, as the status quo proponent in chief would say,...........na mukae hivyo hivyo....... the problem is Mpaka lini?

job

[aeichener]

kathurekebaara41 said:

Wapi FIDA?

Wouldn't this be an excellent case for test case litigation? Or are we going to sit and watch this woman go to prison.

As to questions 1 and 2, I agree that it would be a good constitutional case. And FIDA should certainly endeavour to take it up, and offer free legal representation.

But one needs not only a suitable case, one needs also judges to decide it. And those sadly do not exist in Kenya. One would have to import them. Need not even be British or other Commonwealth jurists; decent and able judges can be found as near as in South Africa.

As to question 3, just see Job's comment, with which I agree.

Alexander

[roughrider]

I empathize with all the righteous indignation spewed thus far, but aren’t we all ignoring what the law says? It is untrue to state that:

kathurekebaara41 said:

This is a glaring example of the way in which the Kenyan State upholds male privilege while imposing sanctions such as these on Kenyan women.

Don't men get to have as many partners as they want with impunity and legitimacy under the law? She wasn't even having simultaneous and irresponsible relationships with her first and second husband

Polygamy – and the law governing polygamy – is found within the context of African customary law and Muslim Sharia law; where the relevant custom allows it, both men and women can marry more than one wife or husband – technically this is polyandry or polygyny. Note well, that African customary law, to the extent that it is not repugnant to justice and morality, is recognized and upheld under our constitution.

However should one choose a Christian marriage or visit a state attorney then one is legally enjoined not to marry another wife or husband whilst the first marriage is still in force – breach of the same would be bigamy.

I am satisfied that in this case we are dealing with bigamy and the magistrate must find Ms Jeptoo guilty and convict. Any other ruling would be a grave miscarriage of justice.

I am a strong supporter of gender equity but in this instance we nbeed to be honest. There is no basis for the alleged discrimination or double standards.... tomorrow it may be a man on the dock for bigamy.

[aeichener]

The case has been decided now:

www.nationmedia.com/dailynation/nmgcontententry.asp?category_id=1&newsid=88989

www.eastandard.net/hm_news/news.php?articleid=1143963374

[KOLONEL BRISK]

Polygamy – and the law governing polygamy – is found within the context of African customary law and Muslim Sharia law; where the relevant custom allows it, both men and women can marry more than one wife or husband – technically this is polyandry or polygyny. Note well, that African customary law, to the extent that it is not repugnant to justice and morality, is recognized and upheld under our constitution.

Legally in my opinion if she had married under a customary law then the trial would not have taken place.
African customs do not bar you from a second marriage unlike Christian or in her case through the District Commissioner's office. Infact even the judge would have had no jurisdiction over it. Marriage solemnised by a goverment at the District Commissioners office is based on Marriage Act Cap 157. The conditions have to be fulfilled. Christian Marriage is based on African Christian Marriage and Divorce Act Cap. 151; while Muslim marriages are conducted on Mohammedan Marriage and Divorce and succession Act Cap. 156; Last but not least we have the Hindu Marriage Act Cap 157;

As the law stands now, one can contract a valid marriage under any of the following systems:

African Christian Marriage and Divorce Act Cap. 151;
Marriage Act Cap 150;
Mohammedan Marriage and Divorce and succession Act Cap. 156;
Hindu Marriage Act Cap 157;
African Customary marriage. caps 152

All these have different consequences and forms. Those contracted under Caps 150, 152 and 157 are monogamous and the parties to the marriage must be biologically a man and a woman. For marriages under cap 156 a man is allowed to have a maximum of four wives at any given time. Under customary law a man may have as many wives as he wants without reference to his wife. Depending on the customs involved, woman to woman marriages are also valid but these have different arrangements from same sex marriages as practiced in other countries. These are commonly practiced by wealthy women who are not able to get children and so they either marry a woman who already has children of her own or encourage her to get children who will then belong to the barren woman. These marriages are seen as a way of obtaining e.g. sons who may not be available to single women through adoption. All the different types of marriages have different types of divorces.

The other intresting part is in regards to age. For purposes of marriage, several statutes are applicable. The Marriage Act (Cap. 150, Laws of Kenya) sets the minimum age of marriage for girls at 16 years, and 18 years for boys. In both cases, parental consent is required. This applies also to marriage under the Hindu Marriage and Divorce Act (Cap. 157, Laws of Kenya). In Islamic law, a person is free to marry on attainment of puberty. Under customary law, some communities deem a person ready for marriage after he/she undergoes the relevant initiation rites or after puberty.

Minimum age for criminal responsibility is 8yrs in Kenya. Capacity to commit a crime commences at the age of 8 years. Between the ages of 8 years and 12 years, a child can be held liable for an offence if it is proved that he or she was aware of the offence. Furthermore, a child below the age of 12 years is presumed to be incapable of committing a sexual offence.

Under the Employment Act (Cap. 226, Laws of Kenya), the minimum age for employment in an industrial undertaking is 16. This restriction does not apply to employees who belong to the same family as the employer - unless the undertaking is dangerous to the life, health or morals of the persons employed. A child under the age of 16 may also be allowed to undertake industrial work if he/she is an apprentice under the Industrial Training Act (Cap. 237, Laws of Kenya). There is no legal minimum working age in the agricultural and services sectors, and for domestic work. Kenya ratified ILO Convention No. 138 on Minimum Age for Admission to Employment in 1979. That convention specifies 15 years as the minimum age for employment. The provision is linked to the number of years required for the completion of compulsory education. 18 is the minimum age required for a person to enter into a legal contract. Under the Trade Unions Act (Cap. 233, Laws of Kenya), children below 16 may not participate or be represented in trade unions. Recently i think the laws for domestic work was changed after the introduction of free education. I am not sure if it was entrenched into law. I remember chiefs were mandated to apprehend parents of all school going age kids found at home.
So the legal acts of Kenya need to be studied in depths for one to fully understand them. What is acceptable for one act may not be acceptable to the other. I belive if she had re-married under the African Customary marriage then all would have been well since all are equal before the constitution and cannot encroach on the other. Senior principal magistrate Wilkinstone Njagi Njage judgement was based on Marriage Act Cap 150 which was used to contract the same.

The one question i still ask Are there paper trails for African Customary marriage?

[roughrider]

illuminating.

i hear there is a campaign to legalize polygamy in the US.

[job]

KK & Alex
At least the sister may not heading to prison,.....I suspect a secretary at KVDA could afford to pay the fine. FIDA or someone needs to start educating women on the various marriage / divorce, options for informed decisions, ama will this elicit an uproar from men? .

KOLONEL BRISK,

That was resourceful. I wonder how many women who opt for say the Christian marriage over the Traditional one understand the post-nuptial or divorce-related consequences tied to both,......prior to picking their preference.

RR,

To some extent, in the US some people might take your statement to be partly true. There have been a recent string of lawsuits challenging the bigamy statute (the State law banning polygamy) both in Utah and Arizona States, filed by citizens ( & of course surreptitiously sponsored by pro-polygamy religious and activist groups). I don't know whether that's enough to qualify as a campaign to legalize polygamy though - Me thinks not.

In the US, Polygamy is considered both a religious and legal issue. Muslims with multiple wives live everywhere in America (especially around Detroit, Michigan), shielding themselves under the cloak of religion. They may choose to have one wife, to whom they are married in the eyes of the State, and several wives (maximum is 4) to whom they are married in the eyes of the Mosque.

The US government recognizes these marriages for Muslims but enforces polygamy laws (mainly State laws) against everyone else........ I know many West African Muslim men (including suspect converts who may not even have been Muslim in the first place) who've not hesitated to use this opportunity of the cloak to get into polygamy.

Most states in the US have a bigamy statute that criminalizes polygamy. The two States of Utah and Arizona have a huge number of religious followers of the Mormon faith.

A particular wing of the church, the people often referred to in the media as "fundamentalist Mormons" have many followers who lead polygamous lives but mostly under the legal radar............. Note that the Modern Mormon Church (Church of Latter Day Saints) discontinued polygamy more than a century ago and in fact condemns the practice out-rightly.

The recent lawsuits I mentioned above, challenging the US ban on polygamy, have largely been filed by followers of this so called "fundamentalist Mormon" grouping.

In May last year, the Utah Supreme Court rejected a former police officer's bid to decriminalize polygamy based on guarantees of religious freedom ( he is a fundamentalist Mormon)...... The cop had also argued that he had constitutional rights guaranteeing freedom & privacy to lead a lifestyle of his own choice. He was handed a big NO POLYGAMY verdict.

One interesting piece of the history of polygamy-ban in the US, is the irony of how religion and race was used as the basis for banning it.

In its 1878 opinion in Reynolds vs. United States, the court refused to recognize polygamy as a legitimate religious practice, dismissing it in racist terms as "almost exclusively a feature of the life of Asiatic and African people." ..........Most tellingly, the court found that the practice is "contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western World."

In later decisions, the court declared polygamy to be "a blot on our civilization" (yaani Christian-Mzungu's civilization) and compared it to human sacrifice and "a return to barbarism."

Contrary to those Christian-Mzungu's ruling statements, isn't the practice of polygamy one of the common threads between Christians, Jews and Muslims that many Wazungu themselves practice today ?

Deuteronomy contains a rule for the division of property in polygamist marriages. Weren't the Old Testament prophets and folks such as Abraham, David, Jacob and Solomon all polygamists?

Solomon truly put the "poly" to polygamy with something like 700 wives and about 300 concubines.......... I think Mohammed had like 10 wives, though the Koran limits multiple wives to four.......... The pure Mzungu called Martin Luther, at one time accepted polygamy as a practical necessity. Polygamy is still present among Jews in Israel, Yemen and the Mediterranean.

Polygamy is present in many (probably most) of the world's cultures, including some Native American tribes. Given this history and the long religious traditions, how can it be denied that polygamy is still a legitimate religious belief? ........Is religion thus a catalyst for or against polygamy? Just thinking aloud. I'm no expert in religious and faith matters, neither I'm I pitching for polygamy.

In the US, since polygamy is a criminal offense, polygamists do not seek marriage licenses. However, even living as married can send you to prison. Prosecutors have asked courts to declare a person as married under common law (by just sharing an abode, chores and bills with a partner) ........and then swiftly proceeded to convict them of polygamy.

If you're keen on following US news involving Kenyan folks in the US,.... some Kenyan men have not been spared from the bigamy legal ax,....... they've been convicted of polygamy ; sometimes through charges initiated by a disgruntled partner (The Sister Jeptoo way) ;... sometimes through an expos'e of a one-bibi-for-Kenya, one-bibi-for-US arrangement.

Job

[Daktari wa makazi]

www.nationmedia.com/dailynation/nmgcontententry.asp?category_id=39&newsid=89978

The above link provides stated facts in The Republic v Mary Jerono. I believe this woman should not have been punished at all. It is not fair. Her initial marriage under customary law does not avail her option to unilaterally dissolve that marriage. Divorce under customary law only takes place after the dowry is returned to the groom’s family. The irony is that the bride does not receive the dowry herself and to expect her to return a dowry she did not receive is totally unfair. If the groom are aggrieved because the dowry has not been returned then he may have a remedy under contract or tort not crimnal law! You will find in many
instances of customary marriages, the husband calls the shots, the wife has no say. Husbands pay dowry and therefore have all the rights, incluidng it seems from Mary Jerono to ask a criminal court to force wife to stay with him against her wishes. That is repugnant to me.

Common sense would demand that the crime of bigamy be committed when one remarries while the initial marriage is subsisting This by extension and to give it a similarity of purpose and reason both marriages must be based on the same legislation. Marriage Act gives power to the civil marriage. Many will remember the lengthy cases of wives of prominent personality fighting over wealth and inheritance. The courts are usually faced with argument of one wife claiming the other is not legitimate because she was not married under the Marriage Act. In such cases the courts usually falsifying such arguments. By those courts results, one can infer that the customary laws have no crime of bigamy. It follws, if this woman married first under the Marriage Act then under the customary laws, bigamy would not be committed. This is because bigamy is a crime under the Marriage Act not under customary laws. Unfortunately, she did the opposite, and was expected to disclose that she was married before entering the second marriage through civil arrangement. I find that ridiculous.

Secondly, it is much easier to get married than it is to dissolve it. In dissolving marriage, especially under Marriage Act parties must institute action in a family court which after approximately one year the family courts would issue decree nisi to certify that the marriage is dissolved. People usually go through that process if there is wealth issues contested.

I am shocked that bigamy is considered a crime, at all. I am not trying to diminish the actions of one partner, being lied to and cheated on is a reprehensible thing, but that is between one partner and the other I see no governmental role in matters between two adults. Secondly, usually bigamy is committed to aid fraud: i.e.,: taking on another identity, conning the victim out of hundreds of shillings, and when deserting them, leave them with a load of financial obligations that devastates them. Con men and women who marry fraudently: do it intently on monetary gains. That is fraud. That is a crime. Although bigamy often goes hand in hand with Fraud, they are not the same. Indeed, it is entirely possible for a bigamist relationship to exist with absolutely no fraud involved what so ever. In concept, if a man or woman wants to have more than one partner, legal or illegal, I could care less. It is a personal matter that no one should be involved in unless it is abusive, destructive, or is apart of a criminal activity, like fraud. Fraud on the other hand, is something that I feel very strongly about. I hate fraud with a vengeance and smile every time a con artist is locked away for a very long time.

I am talking specifically about bigamy, in and of itself, being a crime in Kenya. That is what is ridiculous to me. I am not talking about bigamy that also involves fraud. Bigamy and only bigamy, is the matter that is between you, and your partner. However, bigamy + fraud definitely demands government involvement and severe penalties should be applied to the con artists. But the penalty is not for bigamy, but for fraud.