THE CONTRIBUTION OF DOWRY PAYMENT IN MARRIAGES: A PROPOSAL FOR THE ABOLISHMENT OF THE PAYMENT OF DOWRY IN KENYA
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Abstract
A country must operate on the basis of ideals and taboos. What we have succeeded in doing is that we have normalized the absurd. Even though Kenya preaches equality, it practices gross inequality. Kenya has normalized the male ownership of marriages and the mainstream mistreatment of women in marriages. To protect the family, which is the smallest unit of the society, the community has happily sacrificed the happiness and security women by making them stay in marriages that they no longer consent to. This has spectacularly been done by the use of dowry payment at the beginning of marriages and the compulsory refund of dowry upon divorce.
The payment and refund of dowry has created a prison where women are forced to stay with violent and unloving men long enough to be psychologically tortured, sexually and physically abused for the amusement of the rest of the society under the pretence of preserving the sanctity of marriage. According to the Kenya Bureau of Statistics report (Kenya Demographic and Health Survey 2014), 39% of ever- partnered women aged between 15-49 years experience intimate partner physical and/or sexual violence at least once in their lifetime. 26% of women in the same age bracket experienced domestic violence in 2014. Similarly, 23% of women aged 20-24 but who were married before attaining 18 years have experience physical and /or sexual violence.
To eliminate or reduce incidences of domestic violence in Kenya, the Protection Against Domestic Violence Act 2015 was enacted. The Act does too little if not nothing to prevent the rise of domestic violence and protect women who constitute 85% of victims of domestic violence in Kenya. According to the Act, the worst fear of perpetrators of domestic violence is a restraining order (Section 8). This is a slap on the wrist and an encouragement for the continuance of domestic violence. A review of African cultures in relation to marriage would produce better results in a short time than the Protection Against Domestic Violence Act 2015would in a long time. To be specific, the abolishment of the payment of dowry in African customary marriages would reduce and even prevent further occurrence of physical and sexual violence against women.

Introduction
In traditional African societies, indigenous Africans lived in communities. The interests of the entire community were prioritized over those of individuals. Marriage, for instance, was viewed as a union between families and sometimes communities. The relationship between the communities from which the bride and groom came was treated with utmost importance. Discussions were held to determine the amount of dowry to be paid. Dowry means any token of stock, goods, moneys, or any other property given or promised in consideration of an intended marriage.

The payment of such dowry was not just left to the nuclear family; it involved several people from the groom’s community who would contribute towards the collection of agreed number of animals and amount of money to be paid as dowry. Similarly, the receipt of the dowry was not restricted to the bride’s nuclear family; apart from her parents, her aunts and uncles were also considered. For instance, among the Bukusu the standard dowry is 13 Cows, a goat and other tokens. Of the 13 Cows one was to be given to the girl’s maternal uncles while the goat was to be given to her paternal aunt. There was also a cash amount for the girl’s mother. The two families saw dowry payment as the unifying factor that would hold the families together.
The payment of dowry is so important to the extent that failure to do it takes away the validity of a customary marriage or even the mere presumption of it. Kenyan courts have on various occasions affirmed the position that the payment of dowry in central to the establishment of validity of a customary marriage. In the case of Case v. Ruguru, the Court stated as follows;

“It is enough to say that, as there can be no valid marriage under Kikuyu customary law if among other things this vital ceremony has not been performed, the court finds that on the evidence a marriage between the Plaintiff and Defendant under the custom never took place.”

Similarly, in T v. W and in Re The Estate of Wakaba, the respective Courts stated that in the absence of the payment of dowry as an essential customary rite in a customary marriage, there can be no valid customary marriage. Finally, Justice Maraga held in Re the Estate of Dickson Kihika Kimani (Deceased) that there existed no marriage or presumption of marriage in a situation where even though moneys were paid, the actual dowry (Ruracio) was not paid, and, the objector and the deceased had not lived together for more than seven years.

However, times have changed significantly. Marriage is no longer a union between two families or communities. Rather, it is the voluntary union of a man and a woman whether monogamous or polygamous union and registered in accordance with the Marriage Act. Men and women who have attained the capacity to make personal choices are entitled to make them without fears or undue pressure from their communities so long as those marriages are not prohibited under any law. The laws in Kenya protect Kenyan citizens both as individuals and as part of a community.
The payment of dowry in Kenya is supported by the Constitution of Kenya 2010, the Judicature Act, and the Marriage Act. It is a legal practice but its effects are grossly unjust. It is not only a threat to the marriage itself but most precisely a threat to the life, security, liberty and dignity of women in Kenya.

The psychological impact of payment of dowry on couples

In most customary marriages in Kenya, the marriage is deemed to be owned by the man. The same man, by virtue of paying whatever dowry the girl’s parents ask for, feels a sense of ownership of both the woman and the marriage. It is proved by conduct that both men and women believe in male dominance and ownership of marriage. Both men and women view the payment of dowry as creating rights to use and abuse women in marriages. At the same time stops the woman from walking out of those customary marriages. While some men subject their In most customary marriages in Kenya, the marriage is deemed to be owned by the man. The same man, by virtue of paying whatever dowry the girl’s parents ask for, feels a sense of ownership of both the woman and the marriage. It is proved by conduct that both men and women believe in male dominance and ownership of marriage. Both men and women view the payment of dowry as creating rights to use and abuse women in marriages. At the same time stops the woman from walking out of those customary marriages. While some men subject their wives to domestic violence, others trade them like products at the market place. On the other hand, some women in those violent marriages, just like the violent man, think they are owned and imprisoned in those marriages because of the dowry paid to their parents.

In January of 2017, a popular Boda Boda rider in Kakamega so casually elected to sell his wife to a fellow Boda Boda rider for 500 shillings. He saw it fit to sell a fellow human being the same way chicken is sold in markets when a farmer wants to buy other products. In this case, the man who sold his wife wanted money to buy bottles of Soda for Christmas celebrations. The sad part is that even the wife raised no objection to her being sold to another man just so that her husband could raise enough money to buy some drinks.

Similarly, a 57 year old man sold his 53 year old wife to a 24 year old man so as to settle a 900 shilling debt.21 Just like the previous woman, she didn’t seem to have much trouble with the transaction. Even though she says she feared for her life, she contradicts herself by stating she is so happy with the man who bought her. She made no attempt to fight such degrading treatment by her husband. She is recorded as having stated as follows; ‘I simply did what I was asked to do, and anyway I feared for my life. I’m happy with this man and I hope things will remain this way.’
Hon. Onesimus Twinamasiko, a Member of Parliament in Uganda, made the following comment, though speaking for himself, he represents the thinking of a majority of African man;

As a man you need to discipline your wife. You need to touch her a bit, you know, tackle her. Beat her somehow to streamline her; to enable her really get on the line. You need to do some little bit of beating; it shows love in some societies. Otherwise if you don’t do it, it means that you are not bothered. Whatever your wife does, beat her somehow.
It is this mindset that has lead to the maiming and sometimes the killing of women by men who strongly believe in their hearts that they own their wives together with the right to use and abuse her for the rest of their lives. In July 2016, Jackline Mwende, a victim of domestic violence lost her hands to domestic violence. Several other women have undergone one of the following from the following as a result of domestic violence; rape, broken bones, burns, loss of limbs or even death in some cases.
A research carried out in Nairobi’s Kibra slams show that 89% of those who underwent domestic violence were married at some point.24 Several other organizations have carried out research on domestic violence and they have come to similar conclusions that women are the main victims of domestic violence. In some of those families, women stay in those abusive marriages with the excuse of doing it for the children. However, staying in an abusive marriage for the sake of the children achieves the exact opposite of what those abused women expected. The children grow seeing domestic violence tolerated and encouraged thus think that it is a normal practice. While male children grow believing that violence against women is acceptable, female children grow to tolerate such treatment from men hence continuity in the practice.

Kenya has laws such as the Constitution of Kenya 2010 and the Children’s Act 2001 which take care of the best interest of children whether in marriages or out of marriages. Therefore, the argument of staying in abusive marriages for the sake of children holds no water; it is a mere psychological orientation of ordinary Kenyans. It has repeatedly been stated that dowry payment is not the sale of a woman to man but a token of appreciation given to the girls’ family. However, the reality is that in the mind of an ordinary man or woman in Kenya, the payment of dowry is a sale. The law in relation to the payment of dowry on books and statute does not marry the reality on the ground.

Dissolution of abusive and violent customary marriages

The laws governing marriage and divorce in Kenya are pro family. They create several huddles for those who want to opt out of such marriages. What this does is that it takes away personal choice, voice and power from individual parties to a marriage. This can easily be seen in the long and tedious process of separation and divorce. There are three problems with divorce; time factor, the possibility of compensation and refund of dowry.

i. Time factor
The Marriage Act has timelines that those who wish to walk out of their marriages must respect. Parties to a marriage may only petition for separation in circumstances where there is a dissertation of a spouse by the other spouse for at least 3 years; when the marriage is irretrievably broken down; exceptional depravity by the other spouse; adultery or cruelty. A marriage is deemed to have broken down irretrievably if, among others, a spouse wilfully neglects the other spouse for at least 2 years before the presentation of the petition for separation. Finally, a spouse can only file for separation if the other spouse is imprisoned for life or a term not less than seven (7) years.
A petition for dissolution of a customary marriage may only be filed after conciliation has been done and a report of the same filed in court.36 On the other hand, Islamic marriages are done according to Islamic law. This means that, if a woman from other religions is married to a Muslim and Islamic law allows for a certain manner of treatment of women, she may find herself imprisoned in that marriage. This is because the Islamic law, Christian principles or customary rules which govern that dispute resolution process may not see anything wrong with such treatment complained about. In certain religious marriages, a woman is not allowed to do anything unless she has her husband’s permission. In the same religions, a woman is directed on how to dress, when she must be home and so many things she is not allowed to do such as drive a car just because she is a woman. In short she becomes a captive of foreign religious practices or customary traditions.
A woman is imprisoned within a marriage that doesn’t work for her by the time limits set in the law. First of all, a petition for separation cannot be filled within the first 3 years of the marriage. This means that if a woman finds herself in an abusive marriage with a violent man, she is forced to undergo that violence as she waits for the three years to end. Even at the end of the three years, she is forced to wait for the petition to be heard and determined at whatever pace the court chooses which may take years. This means that before the woman enters into another marriage or relationship with someone else, she has to wait for as long as it takes to have the matter in court heard and determined. Petitions for separation or divorce are never heard under a certificate of urgency.

ii. The possibility or reality of restoration

A woman can only petition for separation if her spouse is imprisoned for a period of 7 years or more. If the imprisonment is for 6years, the woman is by law required to live alone without the ability to contract another marriage. She may not exploit the provisions that state that in case of desertion for a period of more than 3 years one may file for dissolution of marriage because imprisonment of one’s spouse does not amount to desertion. This may be very costly to her if she wants to have children and the 6 years end when her biological clock has turned and she can no longer have children. This simply means that after the imprisonment ends and she successfully petitions the court for separation, it will be of no use to her because it will be too late. She will have been punished for her spouse’s offences. That is not justice.

Secondly, there are matters brought before the courts in which a court can in determining the matter before it give orders that restore the issue complained about as it was before the injury committed. In instances where the court cannot order for physical restoration of something, compensation for the loss incurred is always granted. However, certain injuries or losses attained as a result of domestic violence cannot be cured by orders for compensation. If a woman loses her limbs or even life through domestic violence, there is no measure of compensation or court orders that can restore her life or limbs as they were before the injury was caused.

iii. The refund of dowry

When a woman wants to walk out of a customary marriage, she has to have in mind the fact that the court will ask her family to refund the dowry that was paid to her parents when she got married. However, sometimes the dowry paid is always so much and may have been disposed off by the time a petition for separation is filed. The woman who wants out of the marriage may not be in a position to refund the dowry so just decides to keep suffering in a broken marriage just so that she doesn’t get to appoint where she is asked to refund the dowry.
According to Burnette C. Fish,38 when a marriage broke down among the Kalenjins, there would be a return of the dowry which would include not only the original animals used to for the dowry but also any young ones which had been born in the meantime. Similarly, the Kamba customary practices required the return of dowry. In 1976 Justice Kueller39 held that since the matter before him was premised on Kamba customary law, the dowry had to be returned when a petition for divorce was granted. He went further to state that that particular custom needed not be proved in court is the same was known to both parties. The total dowry paid in this case was 953 shillings and 50 cents. However, with time dowry has gone up and may not be easily refundable.
In JMM v. EKM & Another, 40 the petitioner had paid dowry to the tune of 209,000 shillings, 3 heads of cattle worth 120,000 shillings and an additional 60,000 shillings in cash. He had also helped in the payment of his wife’s school fees. The court granted the petition and ordered the refund of half the dowry and half the fee paid by the petitioner. Finally in RKM v. GMM41, the petitioner filled a petition for dissolution of his marriage and orders as the court would deem fit. The respondent filed a cross petition for separation based on desertion and prayed for the refund of dowry, costs and interests. The Court granted them divorce and granted the respondent his prayer of refund of dowry but only to the tune of 130,000 shillings instead of 260,000 as he had asked.

The separation or divorce between married parties is only complete when the court order for refund of dowry has been complied with. This means that for a woman who is not in a position to refund dowry as directed by the courts, that broken marriage remains a prison and stops her from getting into another marriage that works for her.

Constitutional protection of parties to a marriage

The Constitution of Kenya is written in such a way that it protects Kenyans individually and collectively at the same time. There are provisions specifically written into the Constitution to eliminate every instance or space for one to subject other Kenyans to certain manner of treatment. To begin with, the Constitution provides that every person is equal before the law and has the right to equal protection and equal benefit of the law. That equality is ensured by guaranteeing full and equal enjoyment of all rights and fundamental freedoms. There is a guarantee of equal treatment of women and men which includes the right to equal opportunities in among others, cultural and social spheres.

The Constitution also guarantees every Kenyan, women included, the right to Life; the right to have his or her dignity respected and protected; the right to freedom and security of person which includes the right not to be subjected to any form of violence from either public or private sources, subjected to torture in any manner, whether physical or psychological, treated or punished in a cruel, inhuman or degrading manner. The Constitution also states that any person, women included, shall not be held in slavery or servitude. Every Kenyan retains the right to enjoy the benefit and protection of the Constitution and that right cannot be lost in any circumstance including marriage or dissolution of marriage.

In MAO vs. SO53, Justice Majanja when granting an appeal in a petition for dissolution of marriage stated as follows;

“Although, the respondent expressed the desire to continue with the marriage, it is clear that the appellant was trapped in a loveless marriage. Eugene Cotran in Restatement of African Law Kenya; The Law of Marriage and Divorce, Vol. 1 at P. 179 states that,

“Under Luo customary law, however, there is no fixed list of grounds (as under English Law) and each case is considered on its own merits by the elders. It is however possible to enumerate certain matters which normally constitute grounds of divorce.”…

The grounds and evidence adduced by the appellant established grounds for divorce. The testimony of the appellant and respondent demonstrate that the marriage between the two had become an empty shell and to force the appellant to continue in such a relationship would violate her right to live in dignity.”

Any law including customary law that creates rules or practices that takes away any of the above mentioned rights from a woman or a girl and therefore inconsistent with the Constitution is void to extent of its inconsistency. Similarly, any act or omission in relation to the treatment of parties to a marriage or relationship that is in contravention of the Constitution is invalid.

Comparative analysis

i. India

In certain countries such as India, the payment of dowry is strongly discouraged. In fact, an Act of Parliament; The Dowry Prohibition Act is in place specifically criminalizing and recommending punishment for payment of dowry. The Act recommends punishment of those who are found guilty of the offence of payment of dowry to imprisonment for a term not less than 5 years. Similarly, demanding for the payment of dowry and the offering of payment of dowry through advertising are also punishable in law. The person who offers to pay, the person who pays and the person who receives the payment of dowry are guilty of the offense of payment of dowry. Because of the reduced space for dowry payment in India, women are not imprisoned in broken or violent relationships and marriages as it is in Kenya.

ii. United Kingdom
In developed countries such as the United Kingdom, marriage is not a property owned by a man and the woman just considered as one of his assets. Marriage is not like doing a commercial deal;people make choices, they compromise their own interests for the greater good of marriage as a whole. It is an equal agreement upon which parties to a marriage agree to enter. Whenever parties to a marriage decide to divorce, the point of focus is not what ties them to the marriage but what happens after the divorce. As a result of this, parties commonly enter into pre-nuptial agreements to make plans for what happens when they divorce.

In 2010, German heiress Katrin Radmacher with tens of millions of pounds to her name had divorced her husband, Nicolas Granatino.59 Unlike most divorce cases, in this particular case the wife was the wealthier partner and had asked her husband to sign a pre-nuptial agreement. The justices of the United Kingdom Supreme Court felt that couples should be trusted to make their own decisions. They felt that the couple had entered into that pre-nuptial agreement willingly so significant weight should be given to it. They ruled that her pre-nuptial agreement with her husband was valid. The following were the contents of the pre-nuptial agreement according to her legal counsel, Simon Bruce;

“Catherine and her ex-husband had promised each other that if anything went wrong between them, they wouldn’t make financial claims against each other. It was meant to be a marriage for love; not for money.”

iii. United States

In the United States, personal choices of individuals in marriages are given priority over the interest of a government in the society. The government has the interest of ensuring that marriages are respected and have some form of stability. However, that government interest is not superior to the life, dignity and security of the person of parties to a marriage. The Court in Cleveland Board of Education v. LaFleur stated that the court had realised that freedom of personal choice in matters of marriage and family life is one of the liberties protected by Due Process clause in the Fourteenth Amendment. In Moore v. City of East Cleveland the Court stated that when the Court infringes on choices concerning family living arrangements, it must examine carefully the importance of governmental interests advanced and the extent to which they are served by the challenged regulation.

In Carey v. Population Services International, the Court conceded that personal choices relating to marriage and family relationships are among the decisions that an individual can make without unjustified government interference. Finally, in Planned Parenthood of South Eastern Pennsylvania v. Casey, the court states that the American laws guarantee constitutional protection to personal decisions relating to marriage. Those matters involving intimate personal choices that a person may make are central to personal dignity and liberty. At the heart of liberty is the right to define one’s own concept of existence and the mystery of human life. Unlike in Kenya, the marriages in America have no ingredients such as the payment of dowry that make it difficult for women to free themselves from a broken, violent or uncomfortable marriage in which they no longer wants to be part of.

Conclusions and Recommendations

1.1. Conclusions

When the customary practices or traditions of any community in a country are assessed and found to be in contravention of any existing laws, they are invalidated for the sake of justice. The Constitution recognises the cultures of the people of Kenya as the cumulative civilisation of the people of Kenya.64 However, these cultures are only valid when tested against the same Constitution which states that any law including customary law that is inconsistent with the Constitution is void to the extent of its inconsistency.

Certain cultures of the people of Kenya have been outlawed for failing the constitutional test of repugnancy to justice and morality. For instance, Female Genital Mutilation was a tradition that was widely practiced for decades in Kenya by several communities. Female circumcision by the Maasai was held to be repugnant to justice and morality in Katet Nchoe and Nalangu Sekut v. Republic. 66 This was based on the Ghanaian definition of repugnancy clause that defined the clause to mean what is harmful to both the social and physical wellbeing of a citizen.

Similarly on a different case, the court was tasked with the duty to determine the moral status of woman to woman marriage among the Kisii community in Maria Gisese Angoi v. Mercella Nyamenda. A woman to woman marriage is a customary practice where a widow marries another woman with whom a male figure from the deceased husbands’ clan is to sire children for the dead husband. The High Court held that the practice was repugnant to justice and morality since it prevented the woman from exercising freedom of choice of a marriage partner.

It is my firm belief that the payment of dowry has unjust consequences both physically and psychologically on the parties to the marriage. It gives the man in the marriage the illusion of owning the marriage and the woman in the marriage. It also gives the woman the impression that her life is under control by her husband who gets to determine whether the marriage continues to exist or ends. This creates an impression of marital imprisonment for the woman in the marriage and takes away her right and ability to opt out of the marriage. It also gives her the impression that she cannot choose a direction for her social life. It therefore falls under the principle in Maria Gisese Angoi v. Mercella Nyamenda therefore repugnant to justice and morality.
The payment of dowry is and has for a long time proven to be a threat to; the right to Life; the right to have the dignity of the woman respected and protected; the right to freedom and security of person which includes the right not to be subjected to any form of violence from either public or private sources, subjected to torture in any manner, whether physical or psychological, treated or punished in a cruel, inhuman or degrading manner. It is also a threat to the right not be held in slavery or servitude. Every Kenyan retains the right to enjoy the benefit and protection of the Constitution and that right cannot be lost in any circumstance including marriage or dissolution of marriage.

1.2. Recommendations

Marriage should continue to exist only as long as the parties to that marriage consent to its continuation. Nothing should hold a party to marriage, women to be specific, to a marriage in which she no longer consents to. Nothing should hold her back or imprison her to a marriage whether physically or psychologically. Dowry is one way through which women have found themselves imprisoned in violent, abusive or loveless marriages merely based on the fact that dowry was paid for them and her family would be required to refund it if she is to completely separate herself from the marriage.

Secondly, marriage should be an institution in which parties have equal rights and no single party owns the other. Even though the parties to the marriage may, on their own volition, make special or unique arrangements of duties within the marriage, legally, these parties have and must continue to have equal strength and rights in the marriage. Whenever a party to a marriage withdraws her consent to that marriage, it should be enough to nullify the marriage. Anything, including court orders that seek to force her to continue staying in a marriage that she has expressly withdrawn her consent is a threat to her right to dignity and the right to make a choice of whom to marry.

Just like in India, the payment of dowry should be abolished in Kenya based on its effect both psychologically and physically. A law should be put in place banning the payment of dowry in any form for any reason. This will ensure more discipline between parties to a marriage with full knowledge that every action has the consequence of ending the marriage. It will also guarantee safety for women because violent men will not be encouraged to violently treat or psychologically torture women thinking they have no ability to walk out of the marriage. The same way Prohibition of Female Genital Mutilation Act 2011 was enacted to criminalise female genital mutilation for being repugnant to justice and morality, an Act of Parliament should be enacted specifically outlawing the payment of dowry for the very same reason.

By ALPHONCE ODHIAMBO ODUOR

 

Holds an LLB Degree from Moi University, undergoing Post Graduate training at the Kenya School of Law, The author of; (i) This is Kenya; A defeatist Philosophy, (ii) A Sense of Justice: A self-destructing legal profession in Kenya, (iii) Provision of employment opportunities by the State of the Republic of Kenya to its citizens; a discretionary or mandatory duty? (iv)Minority Rights in a Constitutional Democracy; the Kenyan case and (v) Prostitution and equality before the law.

 

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