Polygamy is discriminatory and unconstitutional

Kenya has finally opened the floodgates for polygamy by signing the marriage bill into law.

The law allows a man to have as many wives as he can without seeking approval from the other wife/wives. While signing the bill into law, President Uhuru Kenyatta remarked: "Marriage is the voluntary union of a man and a woman, whether in a monogamous or polygamous union".

This statement leaves lingering questions. How about if the first woman is uncomfortable with subsequent marriages? Would it still be voluntary for her or after the subsequent marriages, it becomes constructive compulsion to remain in a relationship she is not happy with?

A similar situation exists in Uganda with the provisions of the Customary Marriages (registration) Act Cap 251. The law allows men who marry customarily to be polygamous, but it does not allow women married customarily the same right to marry as many husbands as they can.

It is also silent on men seeking their first wives’ consent before involving them in multiple sexual relationships which come with several dangers including exposure to sexually transmitted diseases, hatred, and emotional and psychological harm.

This is discriminatory and unconstitutional. Discrimination, simply put, is the unjust or prejudicial treatment of different categories of people, especially on the grounds of race, age or sex.

If the law gives men the right and freedom to marry as many wives as they can, it should give the same freedom to women if we truly subscribe to the principle of equality of everyone before the law as enshrined in our Constitution.

We have continued to justify inequality and discrimination using a cultural defence: that it is African culture for men to be polygamous and that it is an abomination for women to do the same. When we advance such justifications, we are simply saying men are superior to women.

While we justify discrimination with this cultural defence, we should be mindful that article 2 of our Constitution provides that: “If any other law or any custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void”

If cultures and practices that give men advantage over women on such issues as property rights, political or other civil rights have been considered discriminatory and unconstitutional, why then not look at polygamous marriages the same way?

In the case of FIDA (U) and 5 others vs Attorney General Constitutional Petition No. 2 of 2003, for instance, the Constitutional court declared unconstitutional several provisions of the Divorce Act that gave a husband an unfair advantage over a wife during a petition for divorce. Similarly, in the case of Law Advocacy for Women in Uganda v Attorney General - Constitutional Petitions Nos. 13 /of 2005, provisions of the Succession Act that favoured men over women were declared discriminatory and unconstitutional.

In most parts of the Western world, polygamous marriages are illegal. Even some African countries such as Benin, Ethiopia, Côte d'Ivoire, Eritriea, Seychelles and Tunisia no longer recognise polygamous marriages. The rest of Africa should pick a lesson.

If they cannot prohibit polygamy, at least there should be an opportunity for women to consent to such relationships or have the freedom to walk away if they feel uncomfortable being part of a polygamous marriage.

The truth is that polygamy is gender discrimination and is utterly inconsistent with the Constitution. Why it has persisted is because those who are dominant and have power to outlaw it are the sole beneficiaries.

Progressive civilisation requires that we deny and relinquish even the most entrenched of our cultures that are unfair and unjust in the modern world.

Our laws and institutions should reflect this progressive vision that guarantees equality, freedom and justice to all, not that which reflects the views of the dominant forces.


The author is a lawyer, social and political commentator.

© 2016 Observer Media Ltd