A Journey of five decades: family law reform in postcolonial Kenya (1967-2015)

Abstract

This article traces the historical trajectory of family law reform in post-colonial Kenya. Taking the 1967 Commission on the Law of Marriage and Divorce as its take-off point, the article draws from the commission’s internal documents, memoranda submitted to the commission, and media accounts of the time to isolate six key concerns that defined the legal reform debate then. These issues continue to animate the contemporary family law reform agenda: minimum age and consent to marry; universal registration of marriages; child custody and child support irrespective of legitimacy; safeguarding matrimonial property rights; mainstreaming alternative justice systems; and legal and institutional response to violence in the family. Legislative reforms of the past decade are assessed for the degree to which they fulfil the ambition of the 1967 Commission. The article concludes that buoyed by the 2010 Constitution’s framework that balances accommodation of plural normative orders with safeguarding of unifying constitutional ideals such as dignity and equality, gains in legislative reforms on minimum age and consent and child support have surpassed the 1967 proposals. However, reforms in matrimonial property, universal registration of marriage, mainstreaming alternative justice systems, and responding to gender-based violence in family relationships have yielded a mixed picture and left some unfinished business.