Customary law is still actively practised in Kenya to govern various spheres of family relationships, be it marriage, divorce or succession. Customary law is an accepted source of law in the country, and is used to determine some disputes in courts of law.
The Constitution of Kenya, Article 2 (4) thereof provides that any law, including customary law that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.
This provision allows the use of customary law as a source of law of the land, but limits its application to its consistency with this constitution.
The Judicature Act, Section 3 (2) thereof provides that the High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.
For a custom to have the force of law it must be accepted or approved in the community as a rule of conduct. Custom is seen as that which prevails amongst a set of people as a result of their consensus of opinion. It is said to be the embodiment of those principles, which have commended themselves to the general conscience of the community as principles of truth, justice and public utility. Woman to woman marriages are practised by some ethnic communities in Kenya, according to their customs. With modernisation, the practice has dwindled significantly but there are some communities that still practice the same. These types of marriages were conducted by women who were either widowed or did not have the ability to have children. A woman would marry another woman and have that woman have children with a man of her choice, preferably of her husband’s age group. The Courts have recognised the existence of these marriages and have set certain parameters for these marriages to be valid, they include:-
• the husband of the woman marrying another woman must have died;
• the woman marrying must have been left childless by her deceased husband
• the woman marrying must be past child bearing age;
• the woman-husband must pay dowry (ruracio in Kikuyu);
• the woman-husband must also arrange for a man from her deceased’s husband age group to have intercourse with her wife.
The children borne from that relationship are considered children of the woman-husband who married the other woman.
The courts have been adjudicating on issues of woman to woman marriages and are doing so presently. Disputes relating to woman to woman marriages mostly occur on issues of succession, after the demise of a party to the marriage. “Widows” who are left from the said unions are vulnerable and are in most instances likely to be disinherited off their property leaving them and the children destitute. The courts decisions recognise woman to woman marriages as valid marriages as per the governing customs and hence they confer rights to the “widows” to inherit from their deceased “husbands” estates.
Any person who seeks to rely on customary law to prove the existence of a woman to woman marriage, must prove that the customary law exists and that the laid down customs were conducted to celebrate the marriage. The courts have held that it is the duty of the person seeking to rely on a custom, to prove its existence and that it was conducted. If a person wants the court to recognise woman to woman marriage, they must demonstrate that the same was a recognised custom in the community and that the ceremony of marriage was conducted as per the customs of the community.
Customary law is a question of fact that must be proved by adducing evidence. One can refer to scholarly writings on the question of customary law, call witnesses who are experts on the said custom and persons who witnessed the practice of the said custom to prove that the said activity did occur and that it occurred in consistency with the customary laws.
Women who engaged in this custom should not shy away from seeking the courts redress whenever they encounter legal challenges as the courts acknowledge the existence of this practice and can offer appropriate remedies.