Kenyan court recognizes traditional same-sex marriage

By F Young

The High Court of Kenya in Mombasa upholds the validity of a traditional Nandi woman-to-woman marriage.

On Oct. 18, Judge Maureen Odero rejected a challenge to an earlier High Court decision recognizing the legality of a traditional Nandi woman-to-woman marriage between Monica Jesang Katam and Cherotich Kimong’ony Kibserea. He also confirmed Jesang's right to administer and inherit the estate of her late female “husband.”

The stepson and niece of the deceased had contested Jesang’s right to administer and inherit the estate worth millions of Kenyan shillings (1 million Kenyan shillings = US$10,000).

In the earlier decision on June 17, Justice Jackson Ojwang’ had found that, in the Nandi culture, a childless woman could marry another woman to bear children for her and the children would thus be considered to belong to the childless woman. This was an established family institution in Nandi customary law, and such traditional practices were aspects of culture that were protected under Article 11 (1) of the Constitution of Kenya 2010.

Justice Ojwang' wrote that Nandi woman-to-woman marriages had been recognized in previous Kenyan court cases and in scholarly legal works. According to an article he cited by Regina Smith Oboler in the January 1980 issue of the journal Ethnology:

"...a female husband is a woman who pays bridewealth for, and thus marries (but does not have sexual intercourse with) another woman. By so doing, she becomes the social and legal father of her wife’s children."

In this case, Kibserea, an 85 year-old childless widow, had agreed to marry Jesang, who was in her early thirties and unmarried, but had two sons. In a written marriage agreement, Kibserea had accepted Jesang’s two sons as her own. She also paid a dowry to Jesang’s father. According to a report by Eunice Machuhi in the Daily Nation newspaper, Kibserea had promised to choose a mature married man from Jesang’s tribe to satisfy her sexual needs. A traditional Nandi wedding marriage ceremony was held in 2006. Jesang moved in with Kibserea, but was not living with her at the time of Kibersea’s death in 2008.

Jesang’s paternal uncle had testified at the trial that the two women had told him they loved each other, according to an article by Melissa Wainaina on the Behind the Mask website. Wainaina states that such woman to woman marriages are not unusual in Africa. They allow a childless woman to have her family name live on through the children of this union. The fathers of the children have no obligations towards them or their mother. This practice is accepted among several African cultures.

A wide variety of same-sex and opposite-sex domestic relationships have traditionally been socially accepted in Africa’s numerous cultures.

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