The recent “pro-polygamy” action of male members of the Kenya Parliament, however, was a significant blow to the important constitutional gains made by the inclusive women’s movement in the political process, reminding us once again that the struggle for constitutionalism does not end with a new revised constitution. It must be consolidated by continued political vigilance of the citizenry to ensure that their rights in the constitution do not get diluted by revisionist bills that bypass the civil society and get discussed and passed within the confines of the legislative body. I am referring here to the unanimous vote of male parliamentarians of March 21, 2014, in favor of the so-called “Polygamy Bill” which grants Kenyan men the right to marry multiple wives, supposedly granted to them by customary law and patriarchal readings of Islam, without consulting or informing their existing spouses. Kenya women parliamentarians walked out in protest, seeing the move as an affront not only to the brave women of the country but also to the very spirit of the new constitution that took years of struggle during which men and women fought together shoulder-to-shoulder.
Expectedly the arguments presented by male parliamentarians in defense of their action went viral in local and global media. In Agence France Press, we read the words of parliamentary majority leader Aden Duale, a Muslim, who insisted that marrying more than one woman was part of the Islamic faith – a kind of religious right of Muslim men. He then went on to refer to Biblical stories that would justify why it was perfectly in religious order for Christian men too to take additional spouses without consulting their existing wives. According to Duale, “I want my Christian brothers to read the Old Testament — King David and King Solomon never consulted anybody to marry a second wife.” The local Daily Nation newspaper, quotes Samuel Chepkong’a, chairman of the Justice and Legal Affairs Committee of the Parliament, saying: “Any time a man comes home with a woman, that would be assumed to be a second or third wife…Under Customary Law, women or wives you have married do not need to be told when you’re coming home with a second or third wife. Any lady you bring home is your wife.” In the meantime, Junet Mohammed, another member of parliament is reported by Capital FM radio to have told the house “When you marry an African woman, she must know the second one is on the way, and a third wife… this is Africa.” And so articles of religion and custom are galvanized by men for men’s interests. Articles of those same religious doctrines and customary laws that contradict the position undertaken by these male parliamentarians are conveniently ignored.
The passage of the “Polygamy Bill” in Kenya – which is yet to be signed into law by the President of the country – follows in the heels of anti-gay legislation in Uganda and Nigeria. It is as if Kenyan men do not wish to be left behind in the African male race to appropriate the colonial trope of “Black hyper masculinity” by demeaning their women and gay compatriots! Of course, Kenya did not enact a new anti-gay legislation. According to the parliamentary majority leader Aden Duale, Kenya already has laws in place to protect its citizens against homosexuals, against the “vermin that must be fought like malaria-causing mosquitoes”, in the words of the Gambian President Yahya Jemmeh. “We [the Kenyan legislators] do not need to go the Uganda way,” said Duale. “…We have the constitution and the penal code to deal with homosexuality, and so this debate is finished. We will not be enacting any new tougher laws…We need to go on and address the issue the way we want to address terrorism”, that is as a criminal offence. Here Duale is referring to another British colonial law, the anti-sodomy law which, though no longer part of the new Kenya constitution, continues to be maintained in the country’s Penal Code. Behind all these pronouncements is the image of the ever looming and dangerous triad: women-homosexuals-terrorists, implicitly framing a justification for violence against innocent citizens.
In many African countries, autocratic civilian and military regimes the constitution is transformed into an anchor of autocratic rule. Such regimes proceeded to nibble national constitution away, clause by clause, freedom by freedom, right by right, always using the members of parliament to enact revisionist legislation of one kind or another. Instead of protecting the rights and freedoms of the nation’s citizens, the constitution was gradually transformed into another anchor of autocratic rule. This dangerous history of new parliamentary bills “eating away” important constitutional protections is beginning to repeat itself in the wake of momentous constitutional review era. The first victims may indeed be women and homosexuals. But if Kenyans do not react with the moral indignation that such legislative fiat deserves, and if they do not mobilize to prevent further attenuation of their constitutional rights, the 2010 Constitution of Kenya will soon lose its teeth and muscles, its progressive values that took many years of struggle to develop, sometimes at the cost of life and liberty. There are great lessons other African countries and beyond can learn from the Kenya democratic and gender inclusive constitution-making process that led to the 2010 Constitution.