Hearings have commenced at the High Court in Kitale in a constitutional petition challenging Kenya’s legal classification of Christian marriage as strictly monogamous.
The petitioner, an 80-year-old retired teacher, conservationist and proprietor of a private school, wants the court to examine provisions of the Marriage Act that define Christian marriages as monogamous and the law criminalising bigamy.
Through his lawyer, Peter Wanyama, the petitioner is challenging Sections 6(1)(a), 6(3), 8(1), 9(a) and 11(c) of the Marriage Act, together with Section 171 of the Penal Code.
Wanyama told Justice Robert Limo that his client filed the petition in his private capacity under Article 3 of the Constitution, which places a duty on every person to respect, uphold and defend the Constitution.
At the heart of the petition is the question of why Christian marriage is legally classified as monogamous while Islamic and customary marriages are recognised as polygamous or potentially polygamous.
Wanyama argued that Parliament’s mandate under Article 45(4) of the Constitution was to recognise marriages entered into under different traditions and systems of personal and family law, rather than determine how religious communities should practise marriage.
“Parliament went beyond recognition by defining Christian, Hindu and civil marriages as monogamous, while Islamic and customary marriages are presumed to be polygamous or potentially polygamous. The question my client asks is: Where did the description of Christian marriage as monogamous come from?” Wanyama told the court.
The lawyer said the petitioner had extensively studied the Bible but had not found a specific verse prescribing that Christian marriage must be either monogamous or polygamous.
He argued that the legal restriction interferes with the petitioner’s freedom of thought, belief and opinion by limiting the form of marriage he can enter into based on the statutory classification of Christian marriage.
The petition also challenges Section 171 of the Penal Code, which provides for up to five years in prison for bigamy where a person already married under a monogamous marriage contracts another marriage.
Wanyama argued that the State should not use legislation to prescribe how Christians should practise their faith.
The case further raises questions about how Christian marriage is taught within Kenya’s education system.
Wanyama cited Article 53(1)(b) of the Constitution, which guarantees every child the right to free and compulsory basic education, alongside provisions of the Basic Education Act, 2013, dealing with inclusivity, respect for diversity and critical thinking.
The case will return to court on November 4, when the Attorney General is expected to respond to the petition.
