The case in point is Malindi Civil Appeal No. 166 of 2019: The National Assembly of Kenya –v- Tukero Ole Kina and The Attorney General.
The Marriage Act, 2014 (the Act) is the primary legislation governing matters marriage in Kenya. The legislation which is enacted under the command of Article 45 (4) of the Constitution of Kenya 2010 (the Constitution) recognizes various kinds of marriages. These are Christian, Civil, Customary, Hindu and Islamic marriages. The Act also provides for the manner and procedures for resolution of matrimonial disputes, including dissolution of marriages.
In this brief, we gaze at Section 66 (1) of the Act which legislates that:
A party to a marriage celebrated under Part IV may not petition the court for the separation of the parties or for the dissolution of the marriage unless three years have elapsed since the celebration of the marriage.
A marriage under Part IV of the Act is a Civil marriage. This marriage is celebrated before the Registrar of Marriages.
The Petitioner assailed Section 66 (1) (the Section) on one primary ground before the High Court. He contended that the Section is discriminatory to the extent that it imposes a 3 year bar before a party to a Civil marriage can petition for dissolution of the marriage. He observed that there is no such bar with regards to petitions to dissolve a Christian, Customary, Hindu or Islamic marriage.
In the Petitioner’s view, the Section offended, among others, Article 27 (4) of the Constitution which forbids discrimination on any ground. The Petitioner also urged that the Section contravened Article 28 of the Constitution for failing to respect and protect human dignity. The Petitioner also argued that the Section contravened Article 30 of the Constitution for failing to ensure that parties are not held to slavery or servitude. The Petitioner also faulted the Section for offending Article 36 of the Constitution for failing to ensure the parties’ right to freedom of association.
After considering rival arguments, the High Court accepted that the Section is prima facie discriminatory. In the High Court’s view, the Section denies parties desirous of dissolving their union under a Civil marriage the opportunity to do so until a 3 year period has lapsed. The High Court termed this a violation of the right to equality in terms of Article 27 of the Constitution. The High Court also opined that the 3 year bar had the effect of forcefully keeping parties in a situation of which they no longer wanted to be part. To that court, this was an affront to a person’s human dignity preserved by Article 28 of the Constitution.
The National Assembly was aggrieved by the High Court’s findings. They thus filed the present appeal. Their first attack was jurisdictional on the grounds of want of ripeness. They also assailed the court’s decision based on what to them appeared to be court’s interference with the constitutional mandate of Parliament. We will not reproduce the full arguments here. It suffices to point out the Court of Appeal (the Court) accepted that the matters raised in the petition were clearly justiciable and brought in the public interest. To this Court, the constitutionality of that Section poses an existing legal problem that is affecting or likely to affect a substantial section of the members of the public. The Marriage Act is already in force with persons contracting marriages and undertaking divorce proceedings thereunder.
On whether the High Court had interfered with the constitutional mandate of parliament, the Court reiterated that in our constitutional set up, Parliament can no longer brandish parliamentary supremacy to escape scrutiny by the High Court. Any legislation made by Parliament outside the confines of the constitution and the law will indubitably attract the High Court’s jurisdiction under Article 165 (3) (b) and (d) of the Constitution. And with that, the jurisdictional challenge was out of the way.
The Court unpacked the main issue in the petition as whether Section 66 (1) of the Act was discriminatory. Put differently, are parties, who, arising either from their belief, religion, conscience or culture, have contracted a Civil marriage discriminated against by the 3 year time limitation in divorce proceedings as compared with parties in other forms of marriages?
The Court started by observing that parties to the different marriage systems in Kenya are not similarly situated or circumstanced to require uniformity in treatment. The parties have dissimilar situations in terms of religion, belief and conscience which leads them to contract different types of marriage. That the marriages are on based on disparate social, religious and philosophical considerations.
To the Court, this dissimilarity does not favor an interpretation of equality that requires all the parties to the different marriage systems to be simply treated alike. Instead, equality must be interpreted in the context of the constitutionally permitted social, religious and personal differences that influence the choice of the different marriage systems.
The Court reckoned that mere differentiation or unequality of treatment does not per se amount to discrimination within the prohibition of the equal protection clause. To attract the operation of the clause, it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any basis having regard to the objective the legislature had in view or which the constitution had in view.
In this regard, the Court considered the issue through the prism of Article 24 of the Constitution. The Article sets out the criterion that is used to separate legitimate differentiation from constitutionally objectionable differentiation.
Under Article 24, the Court observed, legitimate differentiation must pass 3 tests. First is the rationality test under which there must be a legitimate purpose for the differentiation. There must be reasonable connection between the differentiation and its purpose. If the answer to this test is affirmative, then one moves to the second test, namely, the proportionality test. Under the second test, the question to consider is whether the differentiation is proportional. Rather, is the differentiation to the extent necessary? The third and final test is whether the differentiation is necessary in an open and democratic society. If the answer to any of these tests is negative, then it means that the differentiation is discriminatory.
Starting with the rationality test, the National Assembly had argued that the 3 year limitation rested on strong policy considerations which include the need to ensure that marriage is not a trial and error game. To the National Assembly, the bar was put in place in order to protect the sanctity of marriage as parties ought not to be allowed to waltz willy-nilly in and out of the hallowed institution of marriage. That this period was meant to have a stabilizing effect on new unions by creating an opportunity for newlywed couples to navigate through the difficult early years of marriage.
The Court noted that Civil marriages are regulated by the State. It is the State which sets the terms and conditions thereof. The marriages are not regulated by religion or personal belief. Article 45 (1) of the Constitution of Kenya recognizes that the family is the fundamental unit of society and the necessary basis of social order. The article imposes a duty upon the State to protect the family unit. This obligation may, of necessity, involve the adoption of measures designed to secure family life even in the sphere of the private relations of individuals. To the Court, the policy considerations put forth by the National Assembly are consistent with the constitutional provisions on the protection of the family unit.
The Court also appreciated that the restraint with respect to divorce is not confined to Civil marriages only. Section 64 of the Act encourages mediation of disputes when a Christian marriage hits the rocks before resorting to dissolution. Section 68 of the Act equally encourages mediation when the ship of a Customary marriage flounders.
To the Court, Christian traditions and teachings, upon which Christian marriages are anchored, allow for divorce but do not readily encourage it. The marriage is considered a sacrament with parties therein considered as having made a covenant in the presence of God to stay together for life. Under Customary marriages, there are some communities that did not recognize divorce especially where dowry had been paid and there were children from the marriage, for example, Kuria, Maasai, Nandi and Kipsigis communities. In Islamic marriages, divorce, though allowed, is discouraged and is a last option. There exists processes of reconciliation in the Islamic marriages before dissolution. These examples illustrate a deliberate restraint with respect to divorce.
After some legal and comparative analysis, the Court was fully convinced that there is a legitimate reason and purpose for the provisions of Section 66(1) of the Act. This arises out of the State’s positive constitutional obligation to protect the family unit and to recognize the various forms of marriages and divorces under different traditions, religious and personal laws. To the Court, Section 66 (1) of the court is neither differential nor discriminatory. All the other systems of marriage provide various limitations on the right to petition for divorce. The Court thus reversed the High Court on this aspect.
Turning to the proportionality test, the question is whether the Section deals a disproportionate harm as against the benefits that is seeks to achieve in terms of protecting the family unit. To the Court, Section 66 (1) was never intended to perpetuate a marriage that is no longer beneficial or that is no longer serving the parties’ interests. The legislature must strike a fair balance between the public and private interests involved in a Civil marriage.
To the Court, yes there is a legitimate constitutional purpose for the time limitations in divorce proceedings arising from Civil marriages. However, as an exception to the general rule, divorce should be allowed for situations which are unavoidable and unendurable, say for reasons of exceptional hardship or depravity irrespective of the duration of the marriage. There will be need to protect the rights of the parties in such situations. Such protection may avail if a party walks out of the marriage. To that extent therefore, Section 66 (1) fails the proportionality test. In other words, the Section produces disproportionate effect in cases where a divorce in a Civil law marriage may be necessary and justified before the 3 year limitation.
The Court however noted that after the High Court decision was rendered, the Marriage (Matrimonial Proceedings) Rules, 2020 were enacted on 8th July 2020 pursuant to section 95 of the Act. Rule 4 now allows a party in a Civil marriage to apply for leave to petition for divorce before the lapse of 3 years. The Court however noted that these rules contradict section 66 (1) of the Act for two reasons. One, delegated legislation needs to be in accordance with, and within the scope of powers of the parent Act. That relief to petition for dissolution of a Civil marriage before the lapse of 3 years is not anchored on the Act. Two, amendment of a provision of an Act is a legislative act that requires to be undertaken by Parliament. The Rules in effect amend the Marriage Act, which function reposes in Parliament and not the Rules Committee.
In the upshot, the Court found section 66(1) of the Act unconstitutional for failing the proportionality test. The Court however suspended the effect of that declaration for a period of 3 years from the date of the judgment to enable Parliament amend the Marriage Act appropriately. The Court reckoned that Rule 4 of the Marriage (Matrimonial Proceedings), 2020, notwithstanding the irregularity observed, may provide interim relief in the meantime.
The Court also commented on the last test on the importance of differential provisions of the Marriage Act in an open and democratic society. The Court opined that indeed there are legitimate values in the Constitution at stake that underscore the existence of plural family law systems and marriage laws. These values include diversity, inclusiveness and protection of marginalized groups. In an open and pluralistic society, there is need to accommodate religious and other differences different from the dominant views, conduct or practice of the majority. Therefore, the differential provisions in the Marriage Act are justifiable in an open and democratic society based on human dignity, equality and freedom so long as they meet the rationality and proportionality tests.
The full judgment is available at http://kenyalaw.org/caselaw/cases/view/233583/
As we wait for Parliament to do its work, is there a minimum period of time for adjustment with respect to a Civil marriage to allow parties weather the early storms? You be the judge.
