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Traditional Same-Sex Marriage Approved by Kenyan Court

Traditional Same-Sex Marriage Approved by Kenyan Court

Earlier this month, the divorce of Kenyan men Charles Ngengi and Daniel Chege Gichia sent fresh shock waves throughout Kenya. There was outright and widespread condemnation of their marriage in Kenyan media through October 2009. And the pair were described as “the accidental gay rights trailblazers.”

But also this month, the High Court of Kenya in Mombasa has upheld the validity of a traditional Nandi woman-to-woman marriage. The Nandi tribe live in the highland areas of the Nandi Hills in the Rift Valley.

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 [PDF], 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 2010 Constitution.

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, 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.

Contrary to the notion of ‘un-Africaness‘, a wide variety of same-sex and opposite-sex domestic relationships have, including sexual relationships, traditionally been socially accepted in Africa’s numerous cultures.

Writes Aarti Divan:

“With the onset of colonialism the social meaning of same-sex relationships gradually began to change and constitute an explicit identity … Colonial officials encountered such behaviour against the backdrop of a perception of colonial subjects as racially inferior and epitomising primitive man, with sexual desires devoted exclusively to reproduction. To rationalise the behaviour within their own sex and gender norms, neglecting any African social meanings, the behaviour was stigmatised as foreign and un-African.”

With thanks to F Young.

Related stories:

A Gay Divorce Catches Kenyan Attention

Kenya Ends Female Genital Mutilation

In Kibera, a Harsh Life: ONEMoms in Kenya

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Photo credit Mete Dönmez

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35 comments

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5:54AM PDT on Nov 4, 2011

but it is not the same as the other same sex marriage. the win is they can do it/can do it again?

plus the fact this sounds like it includes the original components of marriage. not "we were childhood friends and lovers with sex and romance" type.

2:02AM PDT on Nov 3, 2011

A good system for the protection of childen and for companionship. I like it. And it's not about sex, sex, sex.

7:07PM PDT on Oct 31, 2011

doesn't sound like they understand what same-sex love really is----especially after reading that all over Africa, gay people are flee ing to South Africa as refugees from bodily harm and discrimination

5:51PM PDT on Oct 31, 2011

Good to know that somewhere in the world folks are not uptight about this!

12:29PM PDT on Oct 31, 2011

meh

10:07AM PDT on Oct 31, 2011

If only people could be allowed to make their own choices and relationships, without interference from other people.

2:20PM PDT on Oct 30, 2011

thanks

5:28AM PDT on Oct 30, 2011

I got some questions: are these women considered lesbians? Do people in this tribe even know concepts like homosexuality and bisexuality? And also, who wears the pants in the family?

3:55AM PDT on Oct 30, 2011

For those complaining on behalf of the kids in this relationship-- their *single* mom got married to an elderly rich person who thereby adopted them. They went from financial insecurity and no father to financial security and still no father, but a sort of grandparent stepmom. There is no way this can be considered a loss for them! You're just letting prejudice get in the way of seeing that this was a way for an old lady to provide for a family she cared about-- and going by the legal definition of this sort of marriage, and their history, both women may have been straight, so the prejudice looks even sillier. Did you even read the article?

2:44AM PDT on Oct 30, 2011

@Ginger S: Gee, it would be nice if everybody could have that ideal arrangement...except how ideal is it? A hundred years ago, at least one grandparent was part of the family group, too, either under the same roof or just down the street. We lost something badly needed when we lost that.

Really, your "ideal" is much colored by your upbringing. There are many ways to raise children. A big house filled with three or four generations to pass on learning is probably ideal. A "village" where everyone knows everyone and all adults care for all children is pretty close to the same thing. A polygamous family, where the children have multiple female role models (whether they call them all Mama, or just one Mama and the rest Aunties) is another. A family with just two women or two men requires, at some juncture, a close relationship with a caring adult of the other gender. The worst family pattern of all - one parent trying to be all things to his/her children, nurturer and breadwinner - is unfortunately the most common pattern today in the US. The Nandis' system works for them a lot better than our system works for us, so don't knock it!

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