Kenya: Whether a marriage contracted between two people in a church under statutory law can be dissolved under Kikuyu customary law by a third party, particularly one between a Kikuyu and a non-Kenyan; whether members of the Kikuyu ethnic group are allowed to marry under statutory law or any other law

Specific information regarding statutory or customary marriage practices between a Kikuyu and a non-Kenyan could not be found among the sources consulted by the Research Directorate.

Regarding whether a marriage contracted between two people in a church under statutory law can be dissolved under Kikuyu customary law by a third party, the coordinator of the Coalition of Women Against Violence - Kenya (COVAW-K) has said that marriages "can only be dissolved in court through a separation or divorce" (13 Jan. 2003).

With regard to the question of whether members of the Kikuyu ethnic group are allowed to marry under statutory law or any other law, the COVAW-K coordinator stated that

every Kenyan can choose to marry under any of the recognised systems of marriage under Family Law, namely - customary law; statutory or civil marriage; Islamic marriage; [and] Hindu marriage. [U]pon contracting a statutory marriage one has no capacity to purport to enter into any other form of marriage unless the statutory marriage is dissolved first by a court of law (13 Jan. 2003).

However, in a paper on the gender dimensions of the law, as experienced by Kenyan women, Patricia Kameri-Mbote, writes,

While western marriage laws have been entrenched through legislation, traditional African practices have persisted. Many Kenyans undergo two kinds of marriage, customary and Christian or civil. Each of these kinds of marriages has implications. While most customary marriages are potentially polygamous, civil and Christian ones are monogamous. ...

Kenyan Africans do not perceive themselves as extricated from native customs and laws even after contracting civil and Christian marriages. The laws introduced during colonialism allow only for the conversion of African, Hindu and Muslim marriages to English type ones but not vice versa (IELRC 2001, 10).

Patricia Kameri-Mbote also quotes a legal decision from the Kenya Law Reports in which a Kenyan judge states that

an African is not obliged to marry under the Marriage Act or the African Christian Marriage and Divorce Act; but if he chooses to do so, he is choosing the Christian way of life which recognises one wife only and on his death removes the widow and children from the ambit of tribal customs affecting cohabitation and guardianship (IELRC 2001, 11).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.

References

Coalition on Violence Against Women - Kenya (COVAW-K). 13 January 2003. Correspondence with the coordinator.

International Environmental Law Research Centre (IELRC). 2001. Patricia Kameri-Mbote. "Gender Dimensions of Law, Colonialism and Inheritance in East Africa: Kenyan Women's Experiences." [Accessed 9 Jan. 2003]

Additional Sources Consulted

IRB Databases

NEXIS

Internet sites, including:

Africa Confidential

Africa Online

AllAfrica.com

BBC Africa

East African Standard

Human Rights Watch (HRW)

United Nations Development Fund for Women (UNIFEM)

U.S. Department of State

Women's Human Rights Net

Women's International League for Peace and Freedom (WILPF)

Women's International Network News (WIN)

World News.com

World News Connection (WNC)

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