A historical-legal analysis of woman-to-woman marriage in Kenya

Abstract

This thesis sets out, against a historical background, to establish the legal status of woman-towoman marriages in contemporary Kenya. The phenomenon of woman-to-woman marriage is a form of African customary marriage between two women. Woman-to-woman marriages are distinctly African and clearly distinguishable from the modern-day phenomenon of same-sex marriages, as understood and practiced especially in the global West. They are customary marriages that are conducted by Kenyan communities, such as the Kamba, Kisii, Nandi, Kikuyu and Kuria, for a variety of reasons. The thesis sets out the rationales for woman-towoman marriage and expounds on the nature of the African family and marriage customs in pre-colonial Kenya. Due to the erroneous conflation of the phenomenon of African woman-towoman marriages and same-sex marriages of the West, the provisions in the Constitution of Kenya 2010 and the Marriage Act of 2014 stipulated that adults have the right to marry only persons of the opposite sex. This led to uncertainty about the legal status of woman-to-woman marriage under Kenyan law. This thesis argues that a purposive reading of the Constitution, taking into consideration the Constitution’s recognition of culture as an important value of the Kenyan society and the historical context within which the provisions proscribing same-sex marriages were included in the Constitution and the Marriage Act, leads to the conclusion that these provisions were not intended to proscribe the cultural practice of woman-to-woman marriage in Kenya.