A Kenyan woman has taken the government to court over the rules for registering traditional marriages. Eunice Nganga has filed a petition at the High Court in Kerugoya, arguing that the current laws are unfair and violate the constitution.
She states that the laws force couples who marry under customary law to navigate a complicated and expensive government registration process. If they do not register, their marriage is considered invalid. She is suing the Attorney General, and the case also involves the Kenya Law Reform Commission and the National Assembly, the state bodies responsible for creating and reviewing laws.
The Heart of the Dispute
The case centers on the Marriage Act of 2014. This law states that for any marriage to be legally valid, it must be registered with the government. This includes marriages conducted according to the traditions of various Kenyan communities.
The petitioner argues that this requirement is fundamentally flawed. She states that a customary marriage is complete and legally valid from the moment the families and community conclude the required traditional rites. She believes the law should recognize these marriages as they are, rather than making registration a condition for their validity.
A Discriminatory System
One of the main arguments is that the law discriminates against those who choose a customary marriage.
Unlike Christian, Hindu, Muslim, or civil marriages, customary marriages require a two-step notification process. Couples must inform the government of their intention to marry and then again after the marriage is completed. This creates an extra bureaucratic step not required for other marriage types.
Furthermore, the Registrar of Marriages is given personal discretion to decide whether the traditional rites were performed correctly. The petition points out that the Registrar does not have the same power to judge whether the rites of a church wedding or a Muslim wedding were properly completed.
The Problem of High Costs and Confusing Rules
The petition highlights that the fee for registering a customary marriage is three thousand nine hundred Kenyan Shillings. This cost, she argues, is too high for many Kenyans, particularly those in rural areas who commonly use customary law. This makes a government service inaccessible to a large part of the population.
The court documents also point out that the law is full of contradictions. Some sections of the Marriage Act recognize customary marriages without mentioning mandatory registration. Others state that registration is essential for validity.
There is also confusion over how to prove a marriage exists. One part of the law accepts a token dowry payment as sufficient proof. Another part states that only a government issued certificate is valid evidence. The law even gives different deadlines for registration, with some clauses saying three months and others saying six months.
When Law and Culture Clash
A deeper issue in the case is the conflict between a rigid legal process and a living cultural tradition. The petitioner explains that in many Kenyan communities, customary marriage is not a single event with a clear end date. It is often a continuous process of celebrations, gift giving, and family interactions that can last for years.
The law, however, demands that all rites must be completed before registration can occur. This forces a flexible and ongoing cultural practice into a fixed government checkbox. The petitioner argues this effectively transforms a customary marriage into a civil one, stripping away its cultural essence.
The Divorce Dilemma
The legal problems continue even if a marriage ends. The petition challenges a part of the law that requires a couple to file for divorce in a formal court, even if they have already completed all their traditional divorce rites and are considered divorced by their community. This, she argues, ignores the validity of customary law and forces people into an unnecessary and costly legal proceeding.
What the Petitioner is Asking For
Eunice Nganga is asking the High Court to intervene and provide several solutions. She wants the court to declare that the mandatory registration laws are unconstitutional and discriminatory. She also seeks a declaration that the registration fee is illegally high.
She has requested orders to stop the government from enforcing these specific sections of the Marriage Act and from charging the three thousand nine-hundred-shilling fee.
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