Polygamy and effects of Gender Rights in law in the Kenyan Society; Historical implications on Kenyan Constitution

Abstract

This work discusses polygamy and effects of gender rights in law from a historical analysis of the constitution. Women and men’s experiences and case laws are used to support this argument during post-colonial era when polygamy was legalized. Polygamy which is the main bearing of this work seems well entrenched in all of the customs of Kenyan communities as spelt out in examples herein given in case laws. The Kenyan Constitution, (cap, 150, and 151) which was adopted from the colonizers had in 1902 allowed polygamy under African Customary law but quashed it in 1924 ordinance. The legal dilemma was that this made second wives concubines and their children illegitimate especially if the first marriage was monogamous. This work analyses a brief history of the Kenyan Constitution in the post-colonial era, examines the new law Marriage Act 2014 and discusses the effects and implications of this law on women and their rights in marriage. Islam is given preference due to its polygamous nature and also because sharia on family law-Qadi courts has been entrenched in the constitution. The law now allows men to marry as many women as they wish regardless of the opinion of the first wife. This seems to negate on the women rights of gender equity that have been gained in the same constitution. However, the Act seems to be the best thing that has ever happened to polygamous women and their children-recognition by the law.
Keywords: Constitution, Rights, Gender, Constitution