Download - Evolution of Kenyan Family Law (1897-2014)
Family Law Pre 1897
• Indigenous Africans were guided by customs specific to their tribes/social formaEons (today African Customary Law)
• Arabs (Muslims in general) observed Islamic family law
• The 1897 East Africa Order in Council: – Applies English law (RecepEon Clause) and some Indian Acts
– Targeted at the seZler community
– Empowers Commissioner to establish na#ve courts and regulate their procedure
Colonizing the Family
• NaEve Courts RegulaEons (1897): – MaZers affecEng the personal status of naEves would be determined depending on religion • ChrisEan naEves the law in BriEsh India • Muslim naEves Islamic Law (recall: the treaty with the Sultan of Zanzibar re the 10 mile Coastal strip)
• Neither ChrisEan nor Muslim tribal law, subject to ascertainability and repugnancy provisions
A_er this moment, Family law was divided along racial, religious and ethnic lines
Colonizing the Family…
The Law Applying to Africans • 1897 EA OIC empowers
Commissioner to create NaEve Courts • 1897 NaEve Court RegulaEons: – apply tribal (customary) law to non-‐ChrisEan/non-‐Muslim Africans
– African ChrisEans can apply the law in BriEsh India
• 1902 East Africa Order in Council: – applied ‘naEve law’ in all civil & criminal cases saniEzed for repugnancy & inconsistency
– Commissioner could make ordinances
The Law Applying to Africans (2) • 1902 the Marriage Ordinance enacted
as a statute of general applicaEon (informed by Anglican legal thought) – Monogamous marriages only – NaEves marrying under the MO removed
themselves from the operaEon of Customary law and enjoyed greater protecEons (Cole v Cole)
• 1904 the NaEve ChrisEan Marriage Ordinance enacted – “civil marriage for dummies” – ChrisEan Africans only – Monogamous
– ProtecEon of widows
The Law Applying to Africans (3) • 1904 the Divorce Ordinance enacted
to give matrimonial relief in monogamous marriages only
• 1928 Subordinate Courts SeparaEon & Maintenance Ordinance gave addiEonal relief
• 1941 the Matrimonial Causes Ordinance replaced the Divorce Ordinance
• 2014 the Marriage Act and Matrimonial Property Act consolidate family law, and repeal all these Acts
• Customary law was not covered by statute unEl 2014
The Law Applying to Indians • The 1897 EA Order in Council appears
silent on Hindus • 1898 most received Indian statutes
disapplied, and Hindu Customary Law to apply
• 1946 Hindu Marriage and Succession Ordinance enacted formalized marriages, divorces and succession maZers conducted under customary law retrospecEvely
The Law Applying to Indians (2) • 1961 the Hindu Marriage & Divorce
Act enacted and provided that all future Hindu marriages would be monogamous
• Hindus under the HMDA could access relief available under the Subordinate Courts (SeparaEon & Maintenance) Act and the Matrimonial Causes Act
The Law Applying to Muslims • 1897 East Africa Order in Council
applied Islamic Law to Muslims • 1906 Mohammedan Marriage &
Divorce RegistraEon Ordinance enacted to provide for registraEon of Islamic marriages at the Coast
• By 1928 it is applied inland to all Muslims in the colony except Shias
• Mohammedan Marriage, Divorce & Succession Ordinance enacted to validate retrospecEvely all Islamic marriages, divorces and succession maZers
• 2014 The Marriage Act, MPA
The Law Applying to Europeans • 1897 East Africa Order in Council
received English law, including Common Law
• 1902 Marriage Ordinance general applicaEon
• By 1904 Divorce Ordinance and replaced in 1941 by the Matrimonial Causes Ordinance
• 2014 Marriage Act, MPA
ReflecEons • What are some narraEves you see in the development of
family law over the years? • Why was it important for the colonial state to gain
jurisdicEon over indigenous/customary marriages? • A_er gaining that jsd’n, how did state law treat custom (cf
Cole v Cole & Amkeyo)
• Was the consolidaEon of 2014 necessary? • What is Kang’ara’s main point (Sylvia Kang’ara, Beyond Bed
& Bread?