Global Repository of Muslim Family Laws

Laws that Govern Muslim Marriages

Muslim marriages are also governed by the Marriage Act, which provides for some of the conditions that have to be met for such marriages to comply with the Act. Though, in Islamic law, some of these conditions are not a prerequisite for the validity of a marriage between people who profess the Islamic faith (both parties are Muslim) or a marriage between a Muslim man and a non-Muslim woman. Section 48 of the Marriage Act regulates marriages between “persons who profess the Islamic faith”. Both the High Court and the Kadhi’s Court held that section 48 “provides for Islamic Marriages”. Section 49 provides that such a marriage has to be “officiated by a Kadhis, sheikh or imam as may be authorized by the Registrar and celebrated in accordance with Islamic law”.

Equality in Marriage and Family

The family law provides equal treatment between men and women, the case of Muslims men become the head of family, while women on their end feels that some section especially the divorce and inheritance has denied them privileges and the ratio stipulated in the act is small compared to men counterpart and some of the male take advantage of the same end up mistreating women, particular the case of property. The law is not followed to the latter as the succession cases take a long time to be solved. 

Example of the nature of women rights in divorce.

Where a Muslim dies intestate, the Kadhis Court will distribute his estate to his/her heirs.  The High Court held that, according to the Quran, “a divorced woman has no right to inherit property from her former husband”.^{99 Ramadhan Mustafa v Zulfa Ngasia Juma, above at note 12, para 40} The role of an administrator is to ensure that he/she distributes the estate to the heirs as soon as possible.

Minimum Age of Marriage

Neither the Marriage Act nor the Kadhis courts Act clearly give a clear direction on the conditions of marriage. The parties must be of sound mind, the must have attained the age of marriage, and must agree to the marriage willingly not forced or coerced by anyone in the family like other family fathers or mothers are the ones influencing their daughter or sons to enter into marriage without their wishes. 

Example of the nature of the age in Islamic marriage.

In Council of Imams and Preachers of Kenya, Malindi & 4 others v Attorney General & 5 others Footnote 58 in which an underage girl contracted an Islamic marriage, the High Court held that that marriage was void because, under Kenyan law, only persons aged 18 years and above can get married. Section 49(1) of the Marriage Act provides for people who are allowed to officiate at Islamic marriages. Another requirement is that the groom has to pay a dowry to the bride. The dowry aspect of the marriage has to be dealt with in accordance with Islamic law and not in accordance with customary law.

Divorce Provisions for Women and Men

Divorce is approved in Muslim law, but the law prohibits its exercise by pressures of divine displeasure, according to Prophet Muhammad (PBUH) says that the most annoyance before the almighty Allah is a divorce, originally forbidden and is still disapproved, but has been permitted for the avoidance of greater evils.

 A divorce can be instigated by the evil act of the husband but the procedure of the divorce process is not meant to ease for a Muslim woman who is not satisfied with her marriage and want to dissolve the relationship.

Positive Feature(s) Under Muslim Family Law

Article 24(4) of the Constitution of Kenya (2010) provides that the Bill of Rights, and in particular the right to equality, “shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance”.

Administration Of And Access To Justice On Marriage And Family Matters

The High Court referred to article 170(5) of the Constitution and held that “[the 3 factors on jurisdiction of the Kadhis Court are not disjunctive but conjunctive. They must all exist together for the Court to have jurisdiction. Where they do not, the Kadhi’s Court is stripped of jurisdiction.” It is therefore a pre-condition that both parties agree that the matter should be referred to the Kadhi’s Court and that they must be Muslims.^{9Id, para 3.}

Constitutional Provisions

Constitution provision

Article 24(4) of the Constitution of Kenya (2010) provides that the Bill of Rights, and in particular the right to equality, “shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance”. Hence section 3 of the Marriage Act provides that:

“(1) Marriage is the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this Act. (2) Parties to a marriage have equal rights and obligations at the time of the marriage, during the marriage and at the dissolution of the marriage. (3) All marriages registered under this Act have the same legal status. (4) Subject to sub-section (2), the parties to an Islamic marriage shall only have the rights granted under Islamic law.”

Other National Laws

Kenya has a consolidated act that deals with the civil legislation on domestic violence and gender-based violence, while the National gender and equality commission designed a county policy model on gender-based violence. The stated legislations are; – consolidated popular versions of the Protection against Domestic Violence Act, the Sexual Offences Act, The Marriage Act, and the Matrimonial Property Act.^{This consolidated popular versions of the Protection against Domestic Violence Act, the Sexual Offences Act, The Marriage Act, and the Matrimonial Property Act.} The above-mentioned laws also apply to Muslim population as long as they are citizens of Kenya.

The Offences Act was passed into law in 2006. The Act, whose sole purpose was to cover protection to victims of sexual offences has, for the most part, been glorified as a progressive piece of legislation. While the Act successfully addressed a variety of important issues for women, this legislation would have been a wonderful the best chance for Kenya to discourse the subject matter of marital rape. However, the chance at that time was missed. Subsequently while the initial intention of its supporters was to include provisions outlawing marital rape, this section that highlights the important issue of marital rape was ultimately removed from the initial Bill and clear marital rape exemption enacted. 

The effect of this exemption is to establish the basis for legal impunity for marital rape, leaving protection for married women. This constitutes discrimination against women on the basis of marital status and a violation of their fundamental human rights, particularly the rights to equality, dignity and bodily integrity. “In particular the Penal Code Cap 63 Laws of Kenya, Other than bigamy which is provided for under section 171, there’re no provisions for such forms of SGBV as marital rape, wife? or husband battery, domestic violence etc. Some of these offences are only derivative of main offences such as assault under section 250 and 251″.

The Matrimonial Property Act applies to marriage and family matters.

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

Kenya ratified the CEDAW on 09 May 1984. The preamble envisages a government based on “the essential values of human rights, equality, freedom, democracy, social justice and the rule of law” all of which are principles

Entrenched in the Convention on Elimination of all forms of Discrimination against Women (CEDAW). Article 27(4) of the Constitution further prohibits discrimination on any ground including “race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth. “One of the key wins for women is that Article 2(6) of the Constitution stipulates that any treaty and convention ratified by Kenya will for part of the laws of Kenya. By this Article and the provisions of the Treaty Making and Ratification Act 2012, the rights enshrined in CEDAW form part of the Kenyan laws.

Kenya ratified CEDAW, looking into it the convention is supreme than the act of parliament and other laws in the country. The fact is that our legislators keep on passing the laws which favour them and end up killing the latter and the spirit of the convention (CEDAW). This has resulted in contravening the declaration. Meanwhile there is also the bad intention and culture of impunity in the application of the across various entities.  Additionally, women are still struggling in pushing for a two-third gender quota for equal representation but it’s in vain. The same thing has really hindered the realisation of women rights and end up discriminating against women in some of the laws which directly affect women. The laws include but not limited as; –

• The Marriage Act 2014.  The concerns of this act is that all marriages are now legislated under one Act and it introduces registration of customary marriages, which is a regime that majority of women in Kenya is married under. Registration of customary marriages improves the status of women in such marriages and enhances legitimacy in case of a legal dispute.
• The Matrimonial Property Act 2015. The Act also emphasizes equality of parties in marriage. However, the Act has a claw back clause Section 7. That negates the gain of equality in marriage and calls on spouses to show contribution. This leaves the majority of women at a disadvantaged position since it is not practical to quantify domestic work and/or non-monetary contribution. The law further leaves the court with the discretion of deciding what the woman deserves.
• Land Act 2012. Upon the enactment of the Land Act 2012, spousal consent was required before approval was given for any land transactions that involved matrimonial property. A key purpose for this provision was meant to protect spouses, mostly women, from arbitrary sale of matrimonial property leaving them destitute with their children. Parliament has since passed an amendment law that removed the requirement of spousal consent. Section 11 of the Land Laws Amendment Act amends section 28 of the Land Registration Act by deleting spousal consent. This means that 2 Section 7. ownership of matrimonial property vests in the spouses according to the contribution of either spouse onwards its acquisition, and shall be divided between the spouses if they divorce or their marriage spousal consent is no longer automatically deemed to be overriding interest over registered land without their being noted on the land register. Parliament’s action is retrogressive and places married women in a very precarious position, especially in light of polygamy being acceptable in Kenya.

The 8th periodic report therefore covers the period of May 2009, to December 2013; however, relevant achievements complimentary to the report contents beyond the stipulated period have been included to help solidify continued government commitment on Convention implementation.^{CMN v AWM Environment and Land Case 208 of 2012, eKLR.Echaria (n 53)}

Links to CEDAW reports that refer to Muslim family laws and practices 

1. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/KEN/8&Lang=en
2. https://www2.ohchr.org/english/bodies/cedaw/docs/co/CEDAW-C-KEN-CO-7.pdf
3. https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/KEN/INT_CEDAW_NGO_KEN_29226_E.pdf

Link to Musawah’s CEDAW reports on Kenya

Musawah Oral Statement on Kenya (2017)^{https://www.musawah.org/resources/musawah-oral-statement-on-kenya-2017/}

Musawah and AWAPSA Joint Thematic Report on Kenya (2017)^{https://www.musawah.org/resources/musawah-awapsa-joint-thematic-report-on-kenya-2017}

Any other relevant regional or international treaty or convention signed by Kenya

Kenya acceded to the Maputo Protocol in October 2010, with reservations.^{https://www.knchr.org/Portals/0/Final%20KNCHR%20Advisory%20on%20removal%20of%20reservation%20under%20Article%2014%20%282%29%20%28c%29%20of%20the%20Maputo%20Protocol.pdf}

Kenya ratified the Convention on the Rights of the Child in 1990.^{https://www.unicef.org/kenya/stories/Child-rights-in-kenya-30-years-on#:~:text=People%20around%20the%20world%20hoped,countries%20to%20ratify%20the%20CRC.}

Sustainable Development Goals

Kenya was part of the 2020 voluntary national review of the high-level political forum on sustainable development after Kenya received an invitation letter from the UN to participate in the UN conference. The letter dated 12th September 2019, Kenya voluntary national reviews in 2020.  This was informed by the critical analysis on a policy gap which was singled out in 2018 which assessed the country’s preparedness on the implementation of the 2030 Agenda by elaborating how SDGs targets align with the national planning frameworks.

• https://sustainabledevelopment.un.org/hlpf/2020
• https://sustainabledevelopment.un.org/memberstates/kenya
• https://sustainabledevelopment.un.org/content/documents/25080Kenya_VNR_2020.pdf

AWAPSA and other civil society organizations are planning to continue to monitor the implementation and realization of the SGD’s framework through legislative, policy and county laws. This will enhance the level of participation especially women in the governance and political spheres.  The relevant document which will support in monitoring the SDG’s achievement is the vision 2030 blueprint.

By local researchers, activists and civil society groups

Women have suffered a lot and try to seek justice in the court of law. They have a lot of cases congested at the court yet to be solved. Hence women and girls continue suffering at the expense of men who don’t care and yet their laws are in place. Women become extremely vulnerable upon a husband’s death, with the lives of many being turned into a living hell, not just by their in-laws but also the society in general. Because there is a dog’s life, widows see it all. Some are blamed for the demise of their husbands, especially when the deaths are mysterious or as a result of suicide or murder. Others get disowned and chased away by in-laws upon the death of their husbands. Needless to mention those who get embroiled in nasty court battles over property or those who get forced to participate in backward cultural practices like widow cleansing and wife inheritance. Others have to engage themselves in high-risk work to make ends meet, following abandonment by in-laws. Need we state that some have to constantly fight stigma from society, especially from their married counterparts who treat them with suspicion that they can steal their husbands.

https://www.hrw.org/report/2020/06/25/once-you-get-out-you-lose-everything/women-and-matrimonial-property-rights-kenya

By government agencies/committees

The National Gender and Equality Commission developed a model law which will give a direction on how the family laws will be legislated at the county level in Kenya. Hence focused on the other measures which will protect and promote family affairs as most of the women have suffered in the hands of men and thus make it difficult to realize the SDG’s goals. Where Kenya ratified voluntarily to implement and domesticate the laws and policy which will promote the realization of the SGDs in Kenya.

https://www.equalrightstrust.org/ertdocumentbank/Kenya_Part_3_Legal.pdf

By international bodies

https://www.ohchr.org/en/professionalinterest/pages/minimumageformarriage.aspx

https://www.jstor.org/stable/25740042

https://www.unicef.org/media/66506/file/Global-Guidance-SRGBV.pdf

https://www.unicef.org/media/108461/file/Act%20now.pdf

National organizations like FIDA have been on the forefront in championing women rights and especially the Mombasa chapter because most of the time they deal with Muslim’s women cases in supporting them to access justice at the court of law. The organization comprises lawyers. The sole purpose of FIDA is to support women in accessing justice and advocating for women’s rights. The effort has resulted in women accessing justice through free representation cases and addressing Muslim’s marriage at the Kadhis court.

https://www.hrw.org/report/2020/06/25/once-you-get-out-you-lose-everything/women-and-matrimonial-property-rights-ken

AWAPSA:

https://www.awaazmagazine.com/volume-18/issue-3/women-kadhi/should-women-be-allowed-to-act-as-kadhis

MUHURI- KHELF KHALIFA.  REF:

https://web.facebook.com/khelef.khalifa.1/posts/4049096801855506?comment_id=4053354658096387&notif_id=1626353073678621&notif_t=feedback_reaction_generic&ref=notif

Women are also entitled to the position as long as they are qualified. Ref:   (https://allafrica.com/stories/202107010469.html 

Daily Nation 1 July 2021 by Wachira Mwangi & Farhiya Hussein Ref:  https://allafrica.com/stories/202107060111.html  

Daily Nation 5 July 2021 by Kalume Kazungu and Farhiya Hussein

International Development Law Organization (IDLO) Ref: https://www.idlo.int/news/women-judges-kenya-closer-parity-far-meaningful-equality

file:///C:/Users/admin/AppData/Local/Temp/Marriage,%20Divorce%20and%20Succession%20Laws%20in%20Kenya_Kenya.pdf