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Critical Issues in Woman to Woman Marriages in Kenya (Dissertation - Results Sample)

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This is a chapter I wrote for a client as a chapter for a Master Thesis. I analysed a number of key issues such as human rights, contemporary, and cultural issues. I also did a comparative analysis with Nigeria and South Sudan. At the conclusion, one of which is that the practice is grounded on preservation of man's genealogy and lineage. One of the recommendations I provided was that the practice should consider treating all children equal as opposed to a bias towards children.

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CHAPTER FOUR
CRITICAL ISSUES IN WOMAN TO WOMAN MARRIAGES IN KENYA
4.1 Introduction
There is a sense in which this practice raises eyebrows for it is not widespread and the ignorance exhibited by majority of the populace of this concept of marriage is palpable. It is therefore likely to be perceived with misgivings thereby generate a myriad of critical issues with regard inter alia, to human rights, government policies, place of culture-vis-à-vis express provisions of laws. In this chapter, these issues are analysed, comparative study is undertaken and these, in sum, will form the relevant portions of conclusions and recommendations. This practice has been more pronounced in Africa than might be supposed and it suggests the dynamic and wide range reversal of gender roles as will be shown hereunder in this chapter. Government policies towards customary laws have generally tended to be anything but respectful. In this chapter, discussion on some government policies particularly by the courts affecting woman-marriage will be attempted. In addition to these, the union has to stand scrutiny by subjecting it to human, cultural and contemporary concerns that may attend its practice.
4.1 Human Rights Issues
Woman to woman marriage is replete with cultural connotations. At the end of the day, human rights questions will be posed so that the two must be weighed together. In an era where human rights have been described as ‘values for a godless age,’ issues such as consent, gender discrimination in property distribution, sexual rights and duties- indeed rights and duties are the cornerstone of human rights- will ultimately stick out even as the practice of woman to woman union remain recognized.[F. Klug, Values For A Godless Age: The Story of the UK’s New Bill of Rights (Penguin, 2000)]
For a start, the definition of marriage seems to have left out the aspect of woman to woman marriage. The old rigid concept of marriage known as the ‘coverture’ or the ‘unity principle’ that was propagated by William Blackstone was to the effect that a husband and wife are one person in law, that is, the very existence of a woman is suspended during marriage and is incorporated and consolidated into that of the husband, hence feme-convert. But the definition of marriage in the first place is controversial. Sheriff Girgis, Robert P. George and Ryan T. Anderson, in their article, ‘What Is Marriage?’ having found that the term marriage is not a legal construct and therefore not just a contract, conclude that marriage:[1 William Blackstone, Commentaries 442] [Sheriff Girgis and others, ‘What Is Marriage?’ 246-287, 250, available at < /abstract=1722155> accessed on 15 November 2014]
[u]nderstood as the conjugal union of husband and wife really serves good of children, the good of spouses, and the common good of society. And when the arguments against this view fail, the arguments for it succeed, and the arguments to its alternative are decisive, we take this as evidence that it serves the common good. For reason is not just a debator’s tool for idly refracting arguments into premises, but a lens for bringing into focus the features of human flourishing.[Ibid, 287]
Because the woman-marriage was unheard of in Europe, it explains why it failed to find its way into the different conceptions of marriage. When one considers Lord Penzance’s definition of marriage in Hyde v Hyde as ‘the voluntary union for life of one man and one woman to the exclusion of all others,’ the immediate reaction is that the door to any other type of marriage not contemplated by that definition is shut. Nevertheless, the closest to recognition of woman-marriage came in 1959. The definition supplied universally in the 1959 Glough’s piece that marriage is a relationship between a woman and one or more persons wherein the child begotten therein, is accorded full birth rights common to normal members of his society or social stratum, clearly left out the woman-to-woman marriage. However, the woman-to-woman marriage would find recognition in Jensen Krige’s article in 1974 in which she placed emphasis on legitimization of children and singled out the bride wealth as being the key to African fatherhood. To her therefore, by woman-to-woman marriage ‘we mean the institution by which it is possible for a woman to give bride wealth for, and marry, a woman over whom and whose offspring she has full control, delegating to a male genitor the duties of procreation.’[[1886] L.R 1 P&D 130, 133] [K. Gough, ‘The Nayars and the Definition of Marriage’ (1959) 89 Journal of the Royal Anthropological Institute, pp. 23-34, 23] [Jensen E. Krige, ‘Woman-Marriage, with Special Reference to the Lovedu. Its Significance for the Definition of Marriage’ (1974) 14(1) pp. 11-37, 11]
It is not far-fetched to conclude that consent of the woman-wife could be procured through vitiating factors as duress, undue influence, and coercion. It is to be noted that, for instance, according to Huber, by the autonomy of Kuria women over the marriage-cattle belonging to her household, okoteta mokamona wa nyumba ntobu, meaning to give cattle for a daughter-in-law on behalf of a poor house could affect consent because the lady may be prevailed upon by the parents to acquire bride wealth as the sole reason behind the union thereby vitiate her free will to the marriage. However, not all cases end up that road. In Monica Jesang Katam v Jackson Chepkwony, the petitioner’s testimony illustrated unequivocal consent:[Huber (n 42) 746-747]
They told me the deceased had come to discuss the question of inheritance. They asked me if I agreed. They said Mama has come; do you agree to inherit her wealth? I said ‘Yes, I agree to inherit.’ She had no children. She wanted to marry me. I said I agree. It was 13th July, 2005. The deceased said that since I agree, she would take me to Mombasa.
It is noteworthy that Kirsten addressed her mind to this question of consent. She poses this question to no particular female husband, ‘was her bride willing to enter into this marriage, or did she (and her parents) not know that she was going to marry a woman?’ This question revealed appalling results. According to Kirsten, ‘a number of older men and women interviewed at Mogabiri Village in North Mara in March 1998 held that many of the girls who had been married to women long ago did not know they were getting married.[Infra (n 12) 17]
On the question of gender discrimination in inheritance in which the males were favoured in most African societies, for instance among the Kuria, the same run counter to Articles 27 and 60(1) (f) of the Constitution of Kenya, 2010 which frown upon discrimination on any ground and in land-related practices respectively. Therefore, the practice of woman-marriage in order for one to have sons for purposes of inheritance can only diminish in significance in so far as it discriminates the against the females in inheritance which position now runs afoul of the Constitution of Kenya, 2010.[D. O’Brien, ‘Female Husbands in Southern Bantu Societies’ in A. Schegel (ed.), Sexual Stratification. A Cross-Cultural View (1976) 109-126, 109]
In sum, human rights issues cannot be wishful thinking because moving forward; there is likelihood, as they still are, of the courts to factor in the foregoing among others.
4.2 Contemporary Issues Concerning Woman-Marriage
The seemingly accepted, though not universal, view of the woman who marries the ‘wife’ is the title of female husband. Granted, she takes over the role of husband in the marriage setting. In fact D. O’Brien has qualified this point in her discourse as ‘a woman who takes on a legal status and social role of husband and father by marrying another woman.’ It was noted hereinabove in the preceding chapter that the practice had acquired socio-economic frame in which young girls preferred this type of marriage for ‘greater sexual freedom.’ In a proper marriage setting, it is the husband who has exclusive sexual rights over the wife and therefore the aspect of greater sexual freedom by the woman-wife is bound to raise moral questions on this practice. It is as a result of this behaviour that Kirsten Alsaker Kjerland’s hypothetical female husband, A, wealthy as she was, was rumoured to have been a prostitute, which partly explains her wealth. Charles Onyango Obbo anchors this theory by exemplifying women who ‘use’ prostitution as a way to accumulate wealth for woman-marriage. Little wonder therefore that Kirsten’s A female husband had, by 1988, five wives and her first wife, B, had taken her own wife because of wealth. Be it as it may, the concern of how the children of these marriages are brought up, in an environment of ‘greater sexual freedom,’ it is argued, is a recipe for dysfunctional families in their later marriage-properly-so-called life, because therein, the exclusivity of the sexual rights is to be upheld.[Ibid 109] [Kirsten Alsaker Kjerland, ‘When African Women Take Wives: A Histriographical Overview’ (1997) 6 Nordic African Institute Occasional Papers, 1-21, 14] [Charles Onyango Obbo, ‘Dominant Male Ideology and Female Options. Three East Africa Case Studies’ (1976) 46 Africa 371-388, 377-378] [Kjerland (n 12) 14]
It cannot be taken that the practice is wholesomely widespread and therefore fait accompli. In any event, when it was first discovered, it was confusing as it was provoking to many scholars as was to this author the first time the practice came to his attention...
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