home contact us

Impact of Religious Diversity on Marriages In Kenya
By Dr. Hassan Nandwa- Thika College for Shariah & Islamic Studies

INTRODUCTION

The terminology personal law emerged in the sphere of International Law with regard to anomalities associated with application of the territorial Laws.
That is to say that the personal law of an individual is preferred to the law of the country in which he resides.
The rationale for this preference is that personal law enshrines matters and issues which are akin to believe and cultures that differs from an individual to another on advert of increased immigration and continuous interaction between people of different nationalities it became necessary to allow individuals to apply their own personals law to achieve harmony and give individuals some kind freedom even when he/she is in freedom country.

Personal law comprises family law which essential marriage and divorce and law of succession in addition to incidental matters like spouses’ rights, custody and guardianship of children.

Therefore application of personal law of individual is expected to be flexible and dependent on his belief or religion changeable wherever he/she adapt anew believe or religious.

It should be also be observable that different religion provide for different rules regulating matters of personal law.

Therefore adopting a new religion implies automatic submission to the rules of that religion regulation personal law matters.

Given that this is international standard contained in the Universal Declaration of Human Rights, the International Convention on Social, Cultural and Economical rights of the United Nation.

We shall examine closely its application in the Kenyan legal system.


Religious Diversity

Religious diversity is a social reality beyond human reach.

The factors that influence individuals to elect a particular religion include ideological argument in that particular religion, the sentiment shared in that community however the chief consideration is the individual choice of a person concerned

All the influencing factors may be presented to an individual and nevertheless elect not to accept that influence.

It is therefore true to say that no state can successfully eradicated religion at its own will.
It is being the case co-existence of religions is an inevitable reality in any given community.

Islam appreciated this reality;

"There is no compulsion in the religion verily the truth is clear from falsehood
Islam enjoined good treatment of non-Muslims"
Al-Baqarah 256.

God does not prohibit you to do justice to those non-Muslims who did not fight you.

"However shariah restricted intermarriage between Muslims and non-Muslims.
It prohibited intermarriage between Muslims and non-Muslims at the first instant."

(Al-Mumtahinah 60:10)

Also (Al-Baqarah: 221)

The terminology ‘polytheists’ comprises all non-Muslims including Jew and Christians.
The rationale for this prohibition is that for stable family which is practicing Islam with an aim of upbringing children in accordance with the Islamic norms and virtues it is recommended to be built on common religion understanding.

However a later verse accepted Jews and Christian women.

"This day (all) good food have been made lawful and the food of these who were given the scripture is lawful for you and your food is lawful for them .And ( lawfully in marriage are)chaste women from among those who where given the scripture before when you have them their due compensation desiring chastity ,not unlawful sexual intercourse or taking (secret) lovers .And whoever denies the faith –his work has became worthless and he is hereafter will be among the losers." (Al Maaidah: 5)

This verse is explicit in legalizing a marriage between a Muslim man and a Jewish man or a Christian lady on a condition that the lady should be morally upright-chaste lady.

This is a mere exception from the prohibition of Muslims and non-Muslims and therefore a Muslim lady can not be married by a non-Muslim neither can a Muslim man marry a non-Muslim other than lady Jewish or Christian.

It should be observed that this verse 5:5 is the latest revealed in relation with the two previous verses in Baqara and Mumtahinah.

“And do not marry polytheist women until they believe. And a believing slave woman is better than a polytheist, even though she might please you. And do not marry polytheist men (to your women) until they believe. And a believing slave is better than a polytheist, even though he might please you.
Those invite (you) to the fire, but Allah invites to paradise and to forgiveness, by his permission,
And he makes clear his verses (i.e. ordinance) to the people that perhaps they may remember.” (Al Baqara :221)

“O you who have believed, when the believing women come to you as emigrants, examine (i.e. test) them. Allah is most knowing as to their faith. And if you know them to be believers, then do not return them to the disbeliever’s, they are not lawful (wives) for them, nor are they lawful (husbands) for them, But give them (i.e. the disbeliever’s) what they have spent. And there is no blame upon you if you marry them if you have given heir due compensation (i.e. mahr)

And hold not to marriage bonds with disbelieving women, but ask for what you have spent and let them (i.e. the disbeliever’s) ask for what they have spent. That is the judgment of Allah; He judges between you. And Allah is knowing and wise.” (Al-mumtahanah :10)

Ibn Omar could not comprehend why Jewish and Christian ladies were entitled to this exemption
He should to say:“ I don’t know any disbelief greater than a person saying that Jesus is my lord.”

During the era of Omar some swahabahs married Jewish ladies and were ordered by Omar Ibn Khatab to divorce them but they challenged Omar that it was lawful to marry them

However Omar explained that they may be spies for the enemy besides the ordinary Muslim being tempted to emulate the example of those greater swahabahs.

All in all the restriction by Omar does not reach the level of prohibition.

On the other hand Shafi scholars have argued that the Jewish or Christian lady must have entered into Christian or Jewish faith before the prophethood of Muhammad or her family embraced Christianity or Judaism before the Prophethood of Muhammad (May peace be upon him)

However I am afraid to say that this idea is baseless.

The Jews and Christians present at the time of Prophet Muhammad had all present elements of disbelief- calling Jesus God or Son of God and not accepting the prophethood of Muhammad.

However Quran used to call them people of the book.

“They have certainly disbelieved who say God is The Messiah son of Maryam--- .”(??????? 72)

Kinds of Marriage under the Kenyan System

There are several kinds of marriages recognized under the Kenyan Legal system
They can be classified into two main categories Statutory and Non- Statutory.

1) Statutory Marriages
These are the marriages celebrated under written laws of Kenya which include Cap 150 Marriage Act Cap 150, African Christian Marriage and Divorce Act Cap 151 and the Hindu Marriage Act Cap 157. These marriage shares the same features of monogamous and binding nature in the sense that the can only be dissolve by the court of competence jurisdiction.

The Hindu Marriage

The Hindu Marriage and Divorce Act Cap 157 govern the Hindu marriage and it is monogamous and binding in nature. The Act comprises of the Hindu formalities of solemnizing a marriage at section 5 of the act. The application of this Act is restricted to the Hindu only, however a marriage under this Act bears the same features of Monogamous and bindingness nature with only the High Court have jurisdiction to dissolve it.
There is no provision to its conversion to the African customary or Islamic Marriage.
It should be observed that the Act avoided the confusion caused by the Marriage Act Cap 150 and the Matrimonial causes Act Cap 152 in regard to a marriage between parties who are within the prohibited relations whether it is void or voidable.

2. Non Statutory marriage:

In the broad classification of marriages Islamic and African Customary Law besides cohabitation can be termed as Non-statutory marriages.

(a) Islamic Marriage.

The marriage is solemnized according to Islamic Family Law which is not codified in Kenya.

The Mohammedan Marriage and Registration Ordinance (Act) Cap 155 enables registration of such marriages.

It was thought that Islamic marriages are subjected to marriage Act Cap 150 and therefore Islamic Family Law is subordinately to the English Law contained in the Marriage Act Cap 150.
This was the holding in the case of Fatuma Bint Athuman vs.Ali Bakari 1918(EALR) 171
In which case the court was of the opinion that marriage of minors recognized under Islamic Law is void since Marriage Act Cap 150 avoids such marriages and the marriage Act is the supreme Law of Marriage.

This ruling prompted the enactment of the Mohammedan Marriage, Divorce and Succession Ordinance Cap 156 to provide that Islamic Marriages are not under the Marriage Act Cap 150 and therefore the age restriction on Cap 150 does not apply to Islamic Marriage.

The Act defines Mohammedan Marriage at section 3 to mean any marriage contracted in accordance with and recognized as valid by Mohammedan Law.
This definition leaves a lot to be desired.

Islamic Law besides providing for celebration of marriages under its provision it also recognizes marriages contracted or solemnized under other systems.

There is no doubt that a marriage contracted under and in accordance to provisions of the Islamic Law is an Islamic Marriage.
However the clause “and recognized as valid by Mohammedan Law” restricts the application of Act to marriages contracted under Islamic Law only since all marriages contracted under Islamic Law are recognized to be valid under it.

I believe the Legislature intended “or” instead of ‘and”

If the conjunction ‘and” shall be replaced by ‘or” then the definition will concur with the provisions of Islamic Law which recognize marriages under other legal systems.

This is a mistake that calls for amendment of the Act.

Therefore a Muslim man can marry a Christian or Jewish lady under this Act since such marriage is recognized under Islamic Law.

It is worth to note that the Act gives the High court, the jurisdiction of adjudicate on matrimonial disputes arising from the marriages contracted under this Act.

However the Act does not bar the Kadhi’s courts from entertaining such disputes as at section 3(5)

We should note further that the Kadhi’s court has jurisdiction only on matters where all parties profess Islamic faith. Which means that marriages between a Muslim man and a Christian or Jewish woman fall outside the jurisdiction of the Kadhi’s courts as provided for at section 5 of the Kadhi’s courts Act Chapter 11 which reiterates section …..of the constitution of Kenya.

It should observed that section 5 of the Mohammedan, Divorce and Succession Ordinance Cap 156 incapacitates a person married under Marriage Act Cap 150 in accordance with the Law of any Christian country to marry under the Act Cap 156 without having first obtained a lawful divorce.

Such a person shall be liable to imprisonment for a term not exceeding five years and the Islamic Law shall not have any application to that person.

Section 6 of the Act Cap 156 extends the same incapacity to persons who are already married under African Customary Law.

Islamic Marriage is characterized by being potentially polygamous and can be terminated by Talak at the discretion of the husband.

There are also many other rights and benefits provided for under Islamic Law that are not available under the matrimonial Causes Act, however such rights and relief dissevered
a separate discussion irrelevant to this paper.

These provisions at Section 5 and 6 have a very serious impact on persons who have married when they were non-Muslims and subsequently revert to Islam and think to marry another woman for one reason or the other.

It should also be noted that the High court although it adjudicated upon Muslim marriages, knowledge of Islamic Law is not a requisite, and the parties bear the onus of proof of such Islamic Law.

This leaves the door wide open for the parties to mislead the court since the Judges are likely to be ignorant of Islamic Law.

The Mohammedan Marriage, Divorce and Succession Ordinance does not make any reference to the (Mohammedan Marriage and Divorce Registration Act) provides for registration of all marriage recognized by Islamic Law at section 9.


Therefore a marriage between a Muslim and a Christian or Jewish lady can be registered under Cap 155 (The Mohammedan Marriage and Divorce Registration)

Moreover in such marriage the presence of a party who is not a Muslim automatically ousts the jurisdiction of the Kadhi’s Courts as provided for at section 5 of the Kadhi’s Courts Act Cap 11 .

(ii) African Customary Marriage.

The African Customary Marriage under the African Customary Law which is also not codified in Kenya.

There is also no Act to enable the registration of such marriage.
The African Customary Marriage is potentially Polygamous and can be dissolved by Council of leaders or a Subordinate Court.

The marriage Commission of 1969 made an attempt to codify the African Customary Law which efforts calumniated into a contran’s book.

However the book has only persuasive value since it is not an enactment by parliament.
Also closely related marriage to the African Customary Marriage is the Cohabitation which is a Judge made marriage.

In such circumstances the court infers existence of a marriage owing to long cohabitation.

The Law governing such Marriage is not clear, is it the Christian Marriage and Divorce Act or the African Customary Law.

In absence of Clauses recognizing such marriage under the Marriage Act Cap 150 and the African Christian Marriage and Divorce Act such marriage can only get room under the African Customary Law.

Conversion of Marriages:

We have pointed out the system governing marriage and Divorce is supposed to be flexible and prune to be altered or changed upon change of faith or religion.

In Kenya, this is not the situation.

As we have pointed out that the marriages under the marriage Act Cap 150, the African Christian Marriage &Divorce Act 151 and the Hindu Marriage &Divorce Act are of similar nature monogamous and binding the point of converting one marriage to another does not arises.

The issue of conversion of a marriage from a system to another will only arise in regard to Islamic and African Customary Marriage since both are of the similar nature, monogamous and can be dissolved than by the order of the Court.

Moreover Islamic Law avails to parties to the Islamic Marriage rights and relief not available under any system of marriage in Kenya.

Therefore the need to convert a marriage under Cap 150 or Cap 151 is apparent.
There is no provision in the Acts Mohammedan Marriage, Divorce and Succession Act to enable such conversion.

Therefore a marriage under Cap 150 and Cap 151 cannot be converted in to Islamic Marriage neither can it be brought under African Customary Law.

The same situation applies to the Hind Marriages under the Hindu Marriage and Divorce Act Cap 157, cannot be converted to Islamic or African Customary Marriages.

On one hand a subsequent celebration of a marriage under Cap 150 or Cap 151 during the subsistence of the Islamic or African Customary Marriage will amount to its conversion into a Monogamous binding marriage.

This is demonstrated in the case of Ayoob V. Ayoob

On the other hand a subsequent celebration of a marriage under the African Customary Law or Islamic Laws Cap 155 and 156 has no legal affect at all.
These provisions fall short of the International Standards of the Cultural and Social Human Rights which provide for people’s freedom to choose a religion at their own will to govern their personal life besides their faiths and beliefs.


FINDINGS

1) The law of marriage is dependent on the faith of an individual.
2) The law of marriage should be changeable at the instance of the person concerned (the individual)
3) Islam tolerates other faiths and recognizes marriages under laws of those faiths.
4) Islam accords Christian and Jews special status consequently allows marriage between Muslim men and Christian or Jewish Women.
5) Such marriages (between Muslim men and Christian or Jewish Ladies) are Islamic through recognition.
6) There are numerous systems of Marriages in Kenya. The Christian Marriages contained in Cap 150 and 151 at the apex followed by the Hindu Marriage and then the Islamic and African Customary Marriage respectively.
7) The Islamic and African Customary Marriages can be converted in to Christian Marriages under cap 150 and 151.
8) The Christian and Hindu Marriages under Cap 150, 151 and 157 respectively cannot be converted into Islamic or African Customary Marriages.
9) The African Customary Marriages can be converted into Islamic by subsequent registration of such marriage under Cap 151.
10) An Islamic Marriage either celebrated under the Act 156 or recognized through registration under Cap 155 falls outside the jurisdiction of the Kadhi’s court if party to it is not a Muslim.
11) A revertee to Islamic from Christianity; Judaism or Hindu cannot extend provisions of Islamic Law to his marriage prior to the reverse.

Reference:

1- Holy Quran
2- Al-Imam Ibn Kather Tafseer AL-Quran AL- Adhim .. Daarul- Qalam Beirut
3- Eugene Cotran Casebook on Kenyan Customary Law Professional Books Ltd & Nairobi University Press 1998
4- Eugene Cotran Restatement of African Law – The Law of Marriage & Divorce Sweet & Maxwell 1968
5- Constitution of Kenya Cap 1
6- Kadhi’s Courts Act Cap 11
7- Marriage Act Cap 150
8- African Christian Marriage & Divorce Act Cap 151
9- Matrimonial Causes Act Cap 152
10- Mohammedan Marriage & Registration Act Cap 155
11- Mohammedan Marriage, Divorce & Inheritance Act Cap 156
12- Hindu Marriage & Divorce Act Cap 157

© 2007 Jamia Masjid Nairobi