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Legalising polygamy

Alyssa McDonald
Published: November 15, 2012 - 9:14AM

Of all the ways a government might change the law to make life easier for women, legalising polygamy probably wouldn't be most people's first suggestion.

After all, what's in it for women? They're almost never the ones allowed to take multiple partners: a 1998 survey of over 1000 societies found men could marry more than once in well over 900 of them, while women had the same option in just four. And while there must be some women who enjoy polygymous life, surely there can't be many who wouldn't prefer not to be at risk of sexually transmitted disease, not to mention all the other inconveniences of sharing one's partner?

So you might think. But in Kenya, legalising polygamy is exactly what the government is proposing as part of a Marriage Bill designed to protect women and children. And it's not even the suggestion that's creating the most controversy.

If the Bill is passed - so far it has been approved by the cabinet but not the parliament - multiple partners be recognised, couples who have been co-habiting for six months will be given legal married status, and - according to the BBC, most controversially of all - the "bride price" will be abolished, meaning men will no longer be legally obliged to pay a dowry to the family of a woman they wish to marry, as those in most of the country's more than 40 ethnic groups currently do.

As a group of proposals, it's a strange mixture. Recognising polygamy would bring civil law into line with customary law; abolishing the bride price would do the exact opposite, which presumably explains the controversy. It's the suggestion most likely to have an impact on the way the average person lives his or her life.

Conferring married status on any couple who share a roof for more than six months, meanwhile, creates a law which alters the significance of a custom. The intention, it seems, is to prevent men from walking away free of responsibility for children fathered out of wedlock. But not all women living in what Kenyans call "come-we-stay" relationships need or want such protection. Even those who do might well find themselves alone if they get pregnant before the six-month cut-off; and as one Kenyan wrote to the newspaper, The Daily Nation: "People have the right to associate in any way they deem suitable, even through loose cohabitation because legal marriages are not always a bed of roses."

 The polygamy ruling is oddly unintrusive by comparison, designed to bring the rights of wives whose cultures already accept multiple marriages in line with women whose cultures only accept one partner. Under the new legislation, the third wife of a polygamous man would have the same property and inheritance rights as the only wife of a monogamous one.

 So there are women who should benefit significantly on a personal, practical level. But it's a rule which also legitimises the custom, one which had been dying out in recent years and which routinely disadvantages women. In fact, given that more than 6 per cent of Kenyan adults have HIV/AIDS, and prevalence among women is significantly higher than among men, it may even be helping to kill them.

 And by proposing to abolish the bride price, the Kenyan government has shown it's prepared to table progressive ideas which won't sit comfortably with everyone. Paying a bride price is a long-standing and still-active tradition in many parts of Africa, seen by many as a symbol of the respectful bond marriage creates between two families. But it also turns women into commodities, who can all too easily be seen as a source of income for their families and as property by their new husbands. Some NGOs working in parts of Africa where a bride price is routinely paid even attribute rising levels of domestic violence to this sense that women belong to the men who have paid to be married to them.

 However, the government is more likely to be considering the two big practical issues facing these laws than how it can make them fiercer. Passing the laws through parliament is likely to be tricky - Kenya's parliament is largely made up of men, many if whom rejected 2007's proposed Marriage Bill on the basis that it gave too many rights to women. And even if they do succeed, the question of how to enforce them remains. With a population of 40 million, most of whom live in rural areas, getting rid of the bride price alone will be a very tall order.

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