An Argument for the Continued Validity of Woman-to-Woman Marriages in Post-2010 Kenya

Woman-to-woman marriage is a form of customary marriage between two women, predominantly found in Africa. These customary marriages have been and to some extent still are conducted by various communities across Africa, including in Kenya. Communities such as the Kamba, Kisii, Nandi, Kikuyu and Kuria...

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Bibliographic Details
Published in:Journal of African law 2019-10, Vol.63 (3), p.303-328
Main Authors: Kareithi, Monicah, Viljoen, Frans
Format: Article
Language:English
Subjects:
Children & youth
Colonialism
Constitutions
Gender
Kinship
Legal status
Marriage
Patriarchy
Personal relationships
Sex roles
Society
Terminology
Wealth
Women
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Summary:Woman-to-woman marriage is a form of customary marriage between two women, predominantly found in Africa. These customary marriages have been and to some extent still are conducted by various communities across Africa, including in Kenya. Communities such as the Kamba, Kisii, Nandi, Kikuyu and Kuria practise woman-to-woman marriages for a variety of reasons. The legal status of woman-to-woman marriages in Kenya is uncertain due to the provisions of article 45(2) of Kenya’s Constitution of 2010 and section 3(1) of the Marriage Act of 2014, which stipulate that adults only have the right to marry persons of the opposite sex. However, a holistic and purposive reading of the constitution, taking into consideration its recognition of culture and the protection of children as important values in Kenyan society, and considering the historical context within which the provisions concerning same-sex marriages were included, leads to the conclusion that these provisions were not intended to proscribe the cultural practice of woman-to-woman marriage in Kenya. The constitutional validity of woman-to-woman marriage opens the door to a more expansive and fluid understanding of “family” in Kenya.
ISSN:0021-8553
1464-3731
DOI:10.1017/S0021855319000263