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February 21, 2019

The inviolable rights of a spouse

I have been married for five years. A few months ago my husband became very ill and has been bedridden ever since. I made the decision to hire a house nurse and take care of him at home. At first, his family was supportive of all the medical decisions I made, but with time they have become hostile saying that I am mistreating their son. Last week I came home to find that they have moved him from the matrimonial home to an undisclosed location. My calls have gone unanswered. What rights do I have over his parents?  I have no clue what to tell my kids. He is MY HUSBAND! Can they do this?
Distressed spouse.


The distressed spouse's situation is a sad tale that is becoming more and more common in Kenya. It can happen to both husbands and wives. Does a marriage automatically mean that you have an absolute right over the body of your partner?

Does a marriage certificate make your spouse’s body matrimonial property so that whenever they cannot express their medical wishes when they are ailing you become what would be referee to a matrimonial decision-making principle?

Right to bodily integrity and autonomy is a human right that gives adult patients the right to make their own medical decisions. There is no statutory provision that outrightly authorises a spouse to be the first in line to assume the power to make healthcare decisions for an incapacitated spouse.

It is well-established in case law that marital status alone does not create agency between the spouses. Nevertheless, spouses are fiduciaries under the law and owe a duty to one another. This duty is not accompanied by a spouse’s absolute authority to act as an agent in making healthcare decisions on behalf of his or her spouse.

In the distressed wife’s scenario, she has the capacity to run to court to institute proceedings on his behalf (guaranteed under Article 22 of The Constitution).

Article 29 protects every person’s right to freedom and security and protects individuals from being subjected to physical and psychological torture and from being treated in a cruel, inhuman or degrading manner.

And what could be more degrading than a grown man hauled from his own home before his young children’s eyes and not being able to defend himself?

It is inhumane. Article 25 is clear — freedom from torture and cruel, inhuman or degrading treatment or punishment is a fundamental right and cannot be limited.

The wife’s rights are also being grossly infringed upon. When a person gets married they acquire certain rights and responsibilities. These include the right to consortium (the benefits that a spouse, is entitled to receive from the other including but not limited to companionship, co-operation, affection, aid, financial support, and sexual relations.), a duty to cohabit together, right to name/citizenship, right to matrimonial confidence, maintenance etc. These rights are obviously being intentionally or unintentionally infringed by the renegade relatives.

Article 45 of our constitution recognises the family as the natural and fundamental unit of society and the necessary basis of social order which shall enjoy the recognition and protection of the state. In the case of Mohamed v.

The minister for Citizenship and Immigration 38 0f 2012, the court held that “in the Kenya situation where the right to family is a fundamental right, legislation (or actions) that hinders consortium limits the right to family… any legislation that significantly impairs the ability of spouses to honour their obligations to one another would also limit the right to dignity.”

Moreover this distressed wife has the right to information concerning her husband’s whereabouts as guaranteed under Article 35 of the constitution.

The wife can therefore go to court and demand for the order of Habeas corpus; which literally means “produce the body”. This order secures the liberty of the subject by affording a means of immediate release from unlawful or unjustifiable detention.

It can be directed in both civil and criminal matters. Article 25  states that a right to this fundamental order cannot be limited. Last year, the Kenya National Patients Rights Charter came into force.

Chapter 2 of this charter is the only provision in Kenya that addresses this predicament. It states that “where an adult patient is not competent to make decisions on healthcare services, the spouse, where applicable, next of kin and or the guardian shall accord protection and care to the patient.” Whether this is a hierarchy or an equality provision is open to interpretation.

As a responsible spouse, it is not enough to make a will in the eventuality of death. You must now think of making provisions in case you are incapacitated or terminally ill.

Drafting a power of attorney could also ensure that family wrangles over your best medical interest will be avoided and everyone can focus on your quick recovery. The spousal rights are well embedded in our constitution and they have to be respected at all times.

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