How Do You Marry This?

How Do You Marry This? 19 July 2017

By Sam Muller, HiiL CEO

During a recent drive through crazy Nairobi traffic I learned a few important things about family justice journeys in Kenya. It started with me looking out my window and seeing two women walking uphill, carrying heavy loads on their backs.

“Kenyan women are strong!”, I remarked.

“Yes, that’s true.”, my driver John replied, “They work to make money and when they come home they do all the work in the house and take care of the children.”

“That’s different with us… “ I replied.

“When I come home after work, the children have been washed, I sit down and my wife brings me my food. She must do that.”

“You never take care of the children?”

“Of course, when my wife is sick or when she is away or something. Two times a year or something I cook in the weekend: a stew with ugali. That’s all I can cook.”

“My father also never cooked.” I reflected. John continued.

“As a man you have a lot of responsibility. Your salary must pay for the house, the insurance, the car, the school, the daily shopping. If there is a helper in the house or with childcare, that comes from the salary of the wife. So the man has no time to do much in the house. He will often come home late, very tired. It makes him the boss of the family.”

A huge grin appeared on his face. “We always laughed about former president Kabaki. He could not control his wife, Lucy. She once slapped a newspaperman and an official and in public. This was very embarrassing for him. Wives are hard to control! There was a newspaper story a while ago about a man who was so angry that his wife was complaining and had not cooked that he chopped off both her hands! That was terrible. It is good that the man is now in jail. With the help of many people the woman was able to go abroad and get prosthetic hands. Violence like that is bad. But as a man you also need to be strict. Sometimes you can slap the woman if you really have to. We are all advised that when you have just married you need to be very strict for the first few months or maybe a year, so that things are clear. In that way you avoid trouble.”

“If I or one of my friends slapped our wives I suspect she would hit back or go to the police!”, I replied.

“You would not do that here. There is too much shame. If your wife runs away because you slapped her or because of some other trouble between you, you have to call your family in law. If you do not know where she is, your family in law will blame you. You must know. Normally when there is a big argument or things are not well in the marriage, the wife will to back her family. That is where she will be.”

“And then what?”

“The man and his parents and the wife and her parents or other family members will get together. They will talk about it and the family will help them solve the matter.“

“What kind of things can they then do?”

“They listen. So, for example, the man will say that very often when he comes home late after a hard day of work, there is no food for him. And that the wife only complains and never asks how he is doing. And then he slapped her because she was shouting at him. Or the woman might say that he is not bringing enough money for the family and that she thinks he drinks with his friends and he slapped her when she complained about it. The family could tell the man to pay a fine. Or the woman to apologize. They help them solve the issues.”

“They don’t go to court?”

“It is not considered good to go to court. Then it all becomes public. And it is very expensive and takes long. It is much better done within the families.

“So how do you marry, when you have found a girl?”

“The man and the women decide themselves, mostly. We call that Come-We-Stay-Bro. You decide to stay together. But once you decide: you must involve the families. The parents of the man, the parents of the woman. You agree all together about the marriage. You agree on a dowry for the family of the woman. As a man you must pay that. But if the woman runs away later or does not fulfil her obligations in the marriage, then the man can ask that the dowry or parts of it be paid back. Even after twenty years.“

“Do you register the marriage?”

“Some people do. Many don’t. You have a ceremony in your community. And that’s it.”

We had arrived at our destination. Part of me regretted it. I was in Kenya in connection with a nation-wide justice needs and satisfaction survey we are conducting. I knew one cannot generalize based on this conversation, but it stayed with me. How do you marry what I had just heard with the official legal system? That evening I Googled the 2014 Marriage Act and saw that it does its best to reach out and connect to customary and religious practices, in interesting and innovative ways. But none of what I had just heard could be read there. I saw that the 2010 Civil Procedure Act and Part X and XII of the Marriage Act contain a formal procedure for marriage and a mainly adversarial procedure for its dissolution.

I reflected on the obvious good practices that exist within family structures that prevent conflict, provide quick access to mediation and reconciliation, and that provide for a safe space within which to talk – although it was undoubtedly not perfect. What if there was a more uniform, integrated family justice catalogue that contained all the best practices for justice support for family relations Kenya? It could go from the Come-We-Stay-Bro-moment, to the marriage itself, dealing difficulties that may arise, dissolution if unavoidable and aftercare for a dissolution agreement. It could be evidence based and centered on what works best for users and the rights of the Kenyan constitution. Supported by a super-user-friendly IT platform on which different suppliers of family justice services could offer services that comply with the best standards. And people could pay with mPesa – Kenya’s widely used electronic payment system.

What if?

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This blog first appeared on Slaw, Canada’s online legal magazine.