Woman-to-woman marriage: a cultural paradox in contemporary Africa's consitutional profile

Abstract

The promulgation of several new Constitutions in Africa came with a paradigm shift in the official perception of second generational rights. For example, the Constitution of Kenya, 2010 enshrines the right to culture and family. Such a change in outlook has a special significance, as it intimately affects current institutions, in their work-orientation. Conflicts of approach frequently affect the working of such institutions, especially in light of new constitutional commitments. Woman-to-woman marriage is one of the many forms of cultural practice recognised by some communities in Africa. Although this form of marriage is recognised by communities in several countries, there is no self-evident principle governing the different approaches adopted by the Courts, in adjudicating disputes relating to this form of marriage. The authors demonstrate that the difference in constitutional and statutory frameworks governing these countries has occasioned this difference in approaches. This article elucidates the nature of this unique form of customary marriage, with special focus on Kenya, by firstly, giving the overview of international and domestic laws with regard to the right to culture and family, in relation to the raison d'être of this practice. Secondly, the authors provide a synopsis of the concept of woman-to-woman marriage, its recognition in certain communities, and the purpose for entering into such union. Thirdly, they carry out a comparative analysis in which they consider the Constitution, statutory law and case law in Kenya, Tanzania and Nigeria, in relation to woman-to-woman marriage. In conclusion, they draw analogies from elements in international law, which aim at protecting cultural rights, such as the right to practise this form of marriage