Why Mr Duale's Thinking is Dangerous.

It is with great reluctance that this blogger wades into the Marriage Bill controversy. Some thing the Majority Leader said on TV on Sunday, 23rd March, compels this blogger to take a stab at laying out the implications of the male-dominated fiasco that is the Marriage Bill.

Kenya currently recognises marriages conducted under various traditions, religions or customs. The Civil Registry, in the Attorney-General's Office, handles marriages concluded under the Marriage Act, the African Christian Marriage and Divorce Act, the Mohammedan Marriage and Divorce Registration Act and the Hindu Marriage and Divorce Act. While all these marriage laws were enacted during the colonial era, they were legitimised under the former Constitution and the the 2010 Constitution. Mr Duale, startlingly, declared that marriages concluded under Islamic law "do not require a Registrar" and proceeded to declare further that, in his case, he recognised three authorities of law: the Holy Koran, the Constitution and then the marriage law, in that order.

Two things emerge about the Majority Leader's statement. First, he is woefully unaware of the law of marriage in Kenya as it prevails today. Second, while his piety is admirable, it has no place in the grand scheme of governance, least of all in the National Assembly. If he is going to place Almighty God ahead of the Constitution of Kenya, it is time the peoples of Garissa and the people of Kenya thanked him for his service to the nation, but asked him to withdraw from politics. He could choose to be an Imam; he has the capacity fr it after all.

While the Preamble to the Constitution mentions "Almighty God", it does so only after mentioning "the People". "Almighty God" in the Constitution s supreme, but that supremacy is "recognised by the People of Kenya." It is not a fait accompli. Therefore, it is the people who are sovereign; not Almighty God. And the sovereignty of the people is demonstrated by their fidelity, first, to the Constitution as the supreme body of law in Kenya, and then their various religious affiliations. Mr Duale is wrong to declare, even if he couches it as "a personal opinion", that it is the Koran that comes first when it comes to the question of marriage, ahead of the Constitution or the marriage law of Kenya.

In the eyes of all governments and states, save for theocracies perhaps, marriage is a civil matter, that is, a secular institution that creates and reinforces certain civil relationships and legitimises certain activities. despite the changes that have occurred in family law in the past half-century, the State and governments have maintained a tight grip on who can marry, when they can marry, how they can marry, and how marriages are recognised. This is not a role the State or governments have delegated to religious institutions; what the State has delegated is the authority to officiate at wedding ceremonies. But the recognition of a marriage remains the exclusive preserve of the State. If Mr Duale is unable to realise this basic fact, then the law-making function of the National Assembly has been seriously undermined. This is a problem we must fix before more legislative fiascoes befall us.