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blog post: Dr. Nancy Baraza frames a legal dialogue on locating the woman to woman marriage (iweto) within family law in kenya

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Blog post by Hon Justice (Rtd.) Dr. Nancy Baraza | Senior Lecturer in Law

Locating the woman to woman marriage ("Iweto") within the family and family law in the Globalized/Postmodern discourse

Kenya has recently seen conttradicting court decisions concerning legality of woman to woman marriage under African customary law. This practice has different names under various Kenyan languages, and the Akamba refer to it as Iweto, which term we adopt here as a term of use. In Lukas Kiliku Ndolo & another v David Musyoka & 4 others [2017] eKLR, the High Court, on appeal, relied on a definition of Iweto marriages from Restatement of African Law Volume 1: The Law of Marriage and Divorce (1968)  by Eugene Cotran (p.26) as:

‘WOMAN-TO-WOMAN MARRIAGE. Where a husband dies leaving a childless widow who is past child-bearing, the widow may marry a wife (iwetu) by giving ngaswya to her family in the usual way.  The widow then selects a man (mutuanya) from her late husband’s relatives to have sexual intercourse with her wife and any children resulting from such cohabitation are regarded as the children of the widow and her deceased husband.  This form of marriage can also take place during the lifetime of a husband where the wife is barren or has not produced male children.

In the 2019 decision of Wilfred Mongare Orina v Askah Mocheche Momanyi [2019] eKLR the High Court dealing with a woman to woman marriage from among the Gusii community, admitted customary law evidence that:

For a woman to be married to another, the woman to be married must not be in a subsisting marriage where dowry had been paid and there are children with the legal husband and/or the woman had disgraced her parents by having children through illicit sex with unknown men who had not married her.  The woman marrying must also pay dowry to the parents of the woman to be married. 

But where presented to court, disputes over Iweto revolve upon adducement of relevant customary evidence; and how the court comprehends the location of woman to woman marriages within the traditional Kenyan family, and contemporary family law. In a recent 2019 decision, a magistrate court was invited to adjudicate on a divorce petition to dissolve an iweto marriage between one Josephone Ndulu and Angela Munyao, to whom Ndulu claimed to be the putative wife. The magistrate declined to grant the divorce, arguing that the two women were in a same-sex marriage that was unlawful in Kenya, and therefore legal relief could not be afforded.

This recent court decisions on the woman to woman marriage institution in Kenya, however, have tended to localise the phenomenon and missed to visualise this familial formation within the greater context of globalisation. Viewed within that broader context, woman to woman marriage institution should form part of the debate about the nature of marriage in the 21stcentury and the role of family law. In a dynamic globalised world, families are becoming more diversified and the traditional, homogeneous model of marital and family life has decreased in importance in the face of globalisation and post-modern change. 

A shift from the traditional family

The authoritarian, patriarchal, multifunctional and multigenerational traditional family, with the father as its sole breadwinner, has turned into a nuclear, democratic, independent, and numerous contemporary family. These drastic changes are a truism of Karl Marx’s observation in the Communist Manifesto over 150 years ago, in which he  stated that  globalisation is the "constant revolutionising of production" and the "endless disturbance of all social conditions.’ It is "everlasting uncertainty." Everything "fixed and frozen is swept away," and "all that is solid melts into air.'A postmodernist argument goes further than this. Bernardes, for example, believes that “…family situations in contemporary society are so varied and diverse that it simply makes no sociological sense to speak of a single ideal-type model of ‘the family’ at all while Scanzoni regards the term ‘family” to be so infused with the values and emotions of ordinary people that for the purposes of scientific discussion they propose to dispense with the word altogether.

The change face and function of marriages

In this kind of context the stiff and resilient structures of the “till death us do part” type, indispensable in the panoptic system of power, lose their usefulness”.Queer theorist Moran talks about the need to be attentive to peculiarities and small differences and to be sensitive to contradictions, conflicts, tensions, and inconsistencies are very inspiring for research into sexual justice and sexual politics.Thus in relation to family life, we have reached a stage where the established behavioural patterns and values of the modern family no longer have widespread currency. The assumption that marriage is a fundamental socio-economic unit legitimising sexual intercourse has been abandoned altogether. Thenceforth, marriage has no longer been considered a community of interests, and one would get married because of love, not calculation. Contemporarily, one can observe a constant increase in the number of informal relationships. 

Moving from the stable nature of “man” to a multiplicity of “man”

Post modern feminists and queer theorists argue that the modern understanding of the stable nature of human beings or “man” is challenged. Instead, there is a multiplicity of “man” facing multiple and intersectional challenges. With this, the assumed stability of law, the mainstay of formalists, is challenged.  Furstenberg rightly argues that in a post modern world, people are no longer content, or even discontentedly willing to follow established customs relating to marriage, conjugal role patterns, filial or parental mores or to confine themselves within the institutionalised frameworks of conventional nuclear or extended family obligations and residential continuities.  Unmarried cohabitation, lone parenting, step relationships, dual income or single person households; enduring con-residential non-heterosexual relationships and parenting have all become familiar patterns of domestic life. Woman to woman marriage institutions can also find space in this dynamic and ever changing understanding of family. 

The impact of this change on family law

With changing nature of family, traditional family law is being put under pressure. Globally, family law is undergoing significant changes which affect not only marginal issues, but also the very heart of Family Law: marriage and filiation relationships.The continuing evolution of the family in society parallels the legal concept of family as anything but static. Family law is changing by taking an increasingly functional and constructivist approach to outlining the family and the parameters of family law.

This whole globalisation and postmodern phenomena in the area of family and family law puts into question the adequacy of traditional family law approaches which our judges and law makers seem wedded to. Current global trends indicate the need to question and transform this underlying paradigm.  At the time that marriage and family life have become more globalised, countries around the world have made large changes to their domestic laws in ways that have reduced the scope and scale of traditional conflicts problems. We in the academia have our job cut out.Revisiting Marxism in her book “Marxism and Freedom”, Raya Dunaveyevskaya (1910-1987) prefigured today’s intersectionality, envisioning “new passions and new forces” emerging from in freedom struggles. She urged intellectuals to keep their ears open to these new voices and new articulations of freedom that had often been silenced or ignored.



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