An article in the April issue of the Nairobi Law Monthly (NLM) by J. Osogo Ambani, a lecturer at Moi University School of Law, suggests that a recent court decision over an issue of customary inheritance rights may have sanctioned, at least in part, woman-to-woman marriages in Kenya.

MONICA JESANG KATAM vs JACKSON CHEPKWONY & ANOTHER

The case of ‘Monica Jesang Katam vs Jackson Chepkwony & Another’ protected the inheritance rights of a woman married to another woman under Nandi customary law. Similar marriages occur among the Kipsigis. In such marriages, a woman who is past child-bearing age who has no sons ‘may enter into a form of marriage with another woman’. The younger woman is then looked after as a ‘wife’ and can bear children by a man from the older woman’s clan. The resulting children are regarded as the off-spring of the older woman who paid the ‘marriage consideration’.

The judge declared that the younger woman in question in this case “was a ‘wife’” through customary law and therefore she and her sons were entitled to inheritance rights.

LEGITIMISING SAME-SEX MARRIAGE?

Although strictly a matter of inheritance rights the case, according to the NLM article does seem to legitimise same-sex marriage between women under the exiting Law of Succession Act [Chapter 160, Laws of Kenya, section 29] and therefore the decision ‘could be said to clarify article 45 of the Constitution by envisioning that there are indeed instances when same sex marriage may apply in the new legal order’.

Article 45 of the new Constitution includes the clause that says, ‘Every adult has the right to marry a person of the opposite sex…’ and that ‘Parliament shall enact legislation that recognizes… marriages concluded under any tradition, or system of religious, personal or family law… to the extent that any such marriages or systems of law are consistent with the Constitution’.

‘The challenge remains,’ wrote J. Osogo Ambani in the NLM, ‘whether the controversial homosexual relationships, often called civil unions, may also have a place [in the ‘new legal order]. Without intending, Justice Ojwang could have opened a Pandora’s box’.

INTERNATIONAL LAW AND CONVENTION

As the Kenya Forum has noted before, however, Pandora’s box may already have been opened.

Article 2 (5) of the new Constitution says, ‘The general rules of international law shall form part of the law of Kenya’, and section (6) says, ‘Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution’.

You didn’t read it, did you? Same sex marriages will come to Kenya.