Customary Marriages
By Mweni Mbuvi (about)
In Kenya, the vast number of marriages are custom based and performed in accordance with customs and traditions. The Kikuyu, the Kamba, the Luo, the Luhya etc have essential steps, elements and norms that constitute a marriage. These customs vary and have not been coded. The worst injustice to these customs is that they have not been given any recognition and/or force of law and are left to vary with each party involved.
The African customary marriages were frowned upon by the colonialists who had introduced Christianity. The various norms, practices and customs constituting a valid customary marriage were regarded as pagans, backward and outdated. This state of affairs was further complicated by the negative brainwashing carried out by the European colonial masters upon African elites who perfected the dim view of African Marriage rites.
The vast majority of people have resorted to performing cultural ceremonies constituting a marriage before embarking on statutory marriages. Dowry being a vital element of marriage among many African cultures is paid before a church wedding.
The contempt with which customary marriages were treated by the European colonialists and emulated by the brainwashed African especially the political leaders, have left the Africans with nowhere to register their marriages. Even if you marry under Kamba, Kikuyu, Luo, Luhya (etc) Customary Laws and fulfill all the traditional requirements, unless you carry out a church wedding under Cap. 152, you will have nothing to show for the marriage. This has created problems in offices while seeking recognition and services thereby allowing the emergency and acceptability of Affidavits of Marriage. It is not uncommon to be asked to swear an affidavit (statutory declaration) to demonstrate and confirm marital status. Even the courts are now recognizing these documents to bolster the claim that one is married.
It is sad to note that customary marriages must be proved, that is, a party must first satisfy any court by preponderance of evidence that there was a marriage before the court can proceed to nullify it in case of divorce proceedings. After 45 years of independence, it is time to promulgate and enact African Customary Marriage and Divorce Registration Act to provide a legal basis for registration of African Customary Marriages and Divorce. This was done for the Muslims in the 19th Century while we have not thought about it in the 21st Century.