| Part of the LGBT rights series |
 LGBTQportal |
Kenya does not recognise same-sex marriages or civil unions. The Constitution of Kenya does not explicitly address same-sex marriage, but was modified in 2010 to state that "every adult has the right to marry a person of the opposite sex, based on the free consent of the parties". [1]
Female same-sex marriages are practiced among the Kikuyu, Luo, Kamba, Kisii, Kipsigis, Nandi, and Suba peoples. Approximately 5–10% of women in these nations are in such marriages. However, this is not perceived as homosexual as understood from a Western perspective, but rather as a way for families without sons to keep their inheritance within the family. The couples are considered married, though are referred to as "mother-in-law" and "daughter-in-law". The female "husband" (the "mother-in-law") carries on the family name and property, while the female "wife" (the "daughter-in-law") bears children, with the intention of having a son. The female "husband" may be widowed, but may also have a living male husband, but he will not be a father to the female "wife's" children, and the identity of the biological father, though often kin, is kept secret. Such marriages may be polygamous; in 2010 a woman was interviewed who had taken five wives. [2] [3] "Cross-culturally, women take wives under three circumstances, all of which increase the status of the female husband: 1) barren women and widows take wives to obtain rights over children produced; 2) rich women accumulate wives to gain prestige and wealth in the same way men do through polygyny; and 3) in some societies where women have the right to have a daughter-in-law, women without sons can exercise their right to a daughter-in-law by marrying a woman and giving her to a non-existent son." [4]
Among the Kikuyu people, kuhikania, the process of getting married, and uhiki, the wedding ceremony, take place in the same manner for female same-sex marriages as with different-sex marriages. There is no separate term to differentiate a female same-sex marriage from a different-sex marriage. As same-sex marriages are not sanctioned by the various Christian churches in Kenya, kuhikania and uhiki continue to be performed through customary guidelines. [5] Amongst the Luo, female same-sex marriages, referred to as chi mwandu, take place between a childless widow and another woman. The female "husband" belongs to the clan of her husband but the "wife" belongs to the widow and her clan. [6] Likewise, the Kamba people recognise iweto marriages which are "woman-to-woman union[s] sanctioned by Kamba customary law". [7] The Kipsigis call this institution ketunchi toloch (literally "one marries for support"), with the female "husband" observing the same betrothal rites as a man seeking a wife. [8] British anthropologist George Wynn Brereton Huntingford wrote with respect to the Nandi people in 1973: [9]
A Nandi widow who had no children but possessed cattle could marry a young woman and become her manong'otiot ("husband") by paying the current rate of bridewealth, whereupon the young woman became her "wife". This gave both women the legal and social status of husband and wife respectively. There was no lesbianism involved here, for the female husband could have her own men friends and the wife could have intercourse with any man of whom her "husband" approved. If she had children, not the man, but the female "husband" of the young man was the sociological father.
Historically, the Meru people recognized ritual leaders who "publicly acted like women" and "would dress as women routinely and sometimes even marry other men". Known as mugwe (plural: agwe) in the Meru language, these individuals were spiritual leaders whose primary role was to "lead [their] people in dealings with God, either by offering propitiatory sacrifices (such as praying for rains and consequent good harvests and grazing) or expiatory sacrifices whenever a serious fault was committed by a group or an individual of the tribe and needed the appeasement of God or the spirits." It was believed that the agwe were "in direct contact with God". This practice gradually disappeared as Kenya became more modernized and exposed to Western culture and homophobia in the 20th century. [10] [11]
In October 2009, two men, Charles Ngengi and Daniel Chege, entered into a civil partnership in the United Kingdom. The ceremony received widespread attention in Kenya, mostly critical. Chege's relatives were harassed by residents in his home village in Murang'a County. [12] In 2020, a Kenyan priest, John Maierepi, married his South African partner Paul Mwaura in South Africa, where same-sex marriage has been legal since 2006. [13]
In February 2010, a rumour spread in the coastal town of Mtwapa that two men were going to marry in a local hotel. The rumour unleashed a "house-to-house witch hunt by anti-gay vigilantes, street attacks targeting gay men, the sacking of an AIDS-fighting medical center, and a widening wave of ultra-homophobic national media coverage." [14] Five days before the date of the non-existent wedding, "many of the muftis and imams discussed the impending wedding during Friday prayers and asked the community to be vigilant against homosexuals. They told their congregants to demonstrate and to flush out homosexuals from the midst of Mtwapa and to ensure that no gay wedding took place". [14] A press conference condemning the wedding was held by the regional coordinator of the Council of Imams and Preachers of Kenya, together with the regional representative of the National Council of Churches of Kenya. They warned that "God is about to punish the fastest-growing town in the Coast region. Come night, come day, we shall not allow that marriage to be conducted in this town tomorrow. We shall stand firm to flush out gays who throng this town every weekend from all corners of this country." [14] They also denounced a local clinic run by the Kenya Medical Research Institute, which had a HIV/AIDS program for counseling and treating men who have sex with men; "We ask that the government shut it down with immediate effect or we will descend on its officials." [14]
The Marriage Act, 2014 (Swahili : Sheria ya Ndoa, 2014), [15] assented by President Uhuru Kenyatta on 29 April 2014, defines marriage as "the voluntary union of a man and a woman whether in a monogamous or polygamous union". The act, which entered into force on 20 May, thus bans same-sex marriage. [16] As a result, same-sex couples cannot marry in Kenya and do not have access to the legal rights, benefits and obligations of marriage, including protection from domestic violence, adoption rights, tax benefits and inheritance rights, among others. The Constitution of Kenya describes the family as the "natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the State." The Constitution was modified in 2010 to state that: [1] [17]
Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties. [a]
The first court case on the issue of customary female same-sex marriages occurred in 1981, when in Maria Gisese v Marcella Nyomenda the High Court ruled that the lack of choice from the female "wife" on the matter of which man should have sexual intercourse with her (as the female "husband" decides with whom the female "wife" may have sex) was "repugnant to justice and an abuse of an individual freedom of choice", and thus did not "fit in with modern developments". [6] The court also ruled that female same-sex marriages performed under Kisii customary law could not be recognized. However, the High Court ruled differently in Esther Chepkuaui v Chepngeno Kobot Chebet and Johanah Kipsang later that year, holding that, although the marriage was "an abuse and indeed repugnant to justice and morality, the practice is in force and remains to be recognised by the entire community such as the Nandi", and therefore should be recognized as a customary law practice. [6] [18]
The status of these marriages became uncertain following the 2010 constitutional amendment and the passage of the Marriage Act, 2014. In October 2018, a court in Machakos County ruled that it could not legally dissolve a customary iweto marriage between Josephine Ndulu and Angela Nyamai. The two women had married in 2005 according to traditional Kamba customs, but Nyamai sought a divorce in 2016. However, the court ruled that the "parties to such a union cannot move the court for dissolution of marriage. [...] The nature of the marriage is not governed by the Marriage Act. It is inconsistent with the institution of marriage as envisaged by the Marriage Act as well as Article 45 of the Constitution." [19] Other cases have dealt with succession rights within customary female same-sex marriages. In 2011, the Mombasa High Court ruled in Monica Jesang Katam v Jackson Chepkwony and Selina Jemaiyo Tirop that the female "wife" belonged to the household of the deceased female "husband" and thus could inherit her property. In coming to this conclusion, the court referred to "scholarly writings supporting the existence and acceptance of the [customary Nandi] institution, and identified the importance attached to culture in the Constitution as a principle to guide interpretation." [6] In 2014, the Court of Appeal also upheld succession rights for the female "wife" in Agnes Kwamboka Ombuna v Birisira Kerubo Ombuna. [6]
Same-sex marriage is strongly opposed by Kenya's largest religious denominations. The Catholic Church opposes same-sex marriage and does not allow its priests to officiate at such marriages. In December 2023, the Holy See published Fiducia supplicans , a declaration allowing Catholic priests to bless couples who are not considered to be married according to church teaching, including the blessing of same-sex couples. [20] The Kenya Conference of Catholic Bishops issued a statement that the declaration "does not in any way approve of 'same-sex marriages' nor try to give a back-door recognition of such a union." The statement added: "In our African context, while recognizing the confusion existing in the more developed countries, of new unchristian models of 'conjugal union' and 'styles of life', we are very clear on what a family and marriage is. The social situation of same-sex marriages does not find acceptance in our culture." On 23 December, Archbishop Philip Arnold Subira Anyolo said that "all clergy residing and ministering in the Archdiocese of Nairobi are prohibited from blessing irregular relationships, unions, or same-sex couples." [21]
In 2015, the Anglican Church of Kenya declared a state of impaired communion with the Episcopal Church of the United States over its decision to allow blessings of same-sex unions and non-celibate gay clergy. [22] In 2023, Archbishop Jackson Ole Sapit criticized the Church of England's decision to allow clergy to bless same-sex civil marriages: "It is ridiculous that the Church of England affirms to remain faithful to the traditional teachings of marriage yet have sanctioned the so-called prayers of love to be used in their Churches to bless unions between persons of same-sex. This is hypocritical and a blatant lie for there is only one truth and not many versions or opinions of it." [23] The Presbyterian Church of East Africa, [24] the Evangelical Lutheran Church in Kenya, [25] and Quakers also oppose same-sex unions. [26]
A Pew Research Center poll conducted between February and May 2023 showed that 9% of Kenyans supported same-sex marriage, 90% were opposed and 1% did not know or had refused to answer. When divided by age, support was highest among 18–34-year-olds at 12% and lowest among those aged 35 and above at 5%. [27]
Marriage, also called matrimony or wedlock, is a culturally and often legally recognised union between people called spouses. It establishes rights and obligations between them, as well as between them and their children, and between them and their in-laws. It is nearly a cultural universal, but the definition of marriage varies between cultures and religions, and over time. Typically, it is an institution in which interpersonal relationships, usually sexual, are acknowledged or sanctioned. In some cultures, marriage is recommended or considered to be compulsory before pursuing sexual activity. A marriage ceremony is called a wedding, while a private marriage is sometimes called an elopement.
Polygyny is a form of polygamy entailing the marriage of a man to several women. The term polygyny is from Neoclassical Greek πολυγυνία (polugunía); from Ancient Greek πολύ (polú) 'many' and γυνή (gunḗ) 'woman, wife'.
Same-sex marriage, also known as gay marriage, is the marriage of two people of the same legal sex. As of 2024, marriage between same-sex couples is legally performed and recognized in 36 countries, with a total population of 1.5 billion people. The most recent jurisdictions to legalize same-sex marriage are Greece and Aruba and Curaçao in the Netherlands. Two more countries, Liechtenstein and Thailand, are set to begin performing same-sex marriages in January 2025.
Same-sex marriage has been legal in South Africa since the Civil Union Act, 2006 came into force on 30 November 2006. The decision of the Constitutional Court in the case of Minister of Home Affairs v Fourie on 1 December 2005 extended the common-law definition of marriage to include same-sex spouses—as the Constitution of South Africa guarantees equal protection before the law to all citizens regardless of sexual orientation—and gave Parliament one year to rectify the inequality in the marriage statutes. On 14 November 2006, the National Assembly passed a law allowing same-sex couples to legally solemnise their union 229 to 41, which was subsequently approved by the National Council of Provinces on 28 November in a 36 to 11 vote, and the law came into effect two days later.
Same-sex marriage has been legal in British Columbia since July 8, 2003, after a series of court rulings in Barbeau v. British Columbia which ultimately landed in favour of same-sex couples seeking marriage licences. This made British Columbia the second province in Canada, the second jurisdiction in North America and the fourth in the world, after the Netherlands, Belgium and Ontario, to legalise same-sex marriage.
Lesbian, gay, bisexual, transgender, and queer (LGBTQ) people in South Africa have the same legal rights as non-LGBTQ people. South Africa has a complex and diverse history regarding the human rights of LGBTQ people. The legal and social status of between 400,000 to over 2 million lesbian, gay, bisexual, transgender and intersex South Africans has been influenced by a combination of traditional South African morals, colonialism, and the lingering effects of apartheid and the human rights movement that contributed to its abolition.
Lesbian, gay, bisexual, and transgender (LGBT) people in Kenya face significant challenges not experienced by non-LGBTQ residents. Sodomy is a felony per Section 162 of the Kenyan Penal Code, punishable by 21 years' imprisonment, and any sexual practices are a felony under section 165 of the same statute, punishable by five years' imprisonment. On 24 May 2019, the High Court of Kenya refused an order to declare sections 162 and 165 unconstitutional. The state does not recognise any relationships between persons of the same sex; same-sex marriage is banned under the Kenyan Constitution since 2010. There are no explicit protections against discrimination on the basis of sexual orientation and gender identity. Adoption is restricted to heterosexual couples only.
The legal status of same-sex marriage has changed in recent years in numerous jurisdictions around the world. The current trends and consensus of political authorities and religions throughout the world are summarized in this article.
Lesbian, gay, bisexual, transgender, and queer (LGBTQ) people in Zimbabwe face legal challenges not experienced by non-LGBTQ residents. Since 1995, the Government of Zimbabwe has carried out campaigns against LGBTQ rights. Sodomy is classified as unlawful sexual conduct and defined in the Criminal Code as either anal sexual intercourse or any "indecent act" between consenting adults. Since 1995, the government has carried out campaigns against both homosexual men and women.
Lesbian, gay, bisexual, transgender, and queer (LGBTQ) people in Tanzania face severe challenges not experienced by non-LGBTQ residents. Homosexuality in Tanzania is a socially taboo topic, and same-sex sexual acts are criminal offences, punishable with life imprisonment. The law also criminalizes heterosexuals who engage in oral sex and anal intercourse.
Lesbian, gay, bisexual, and transgender (LGBT) rights in Africa are generally poor in comparison to the Americas, Western Europe and Oceania.
Lesbian, gay, bisexual, transgender, and queer (LGBTQ) people in Lesotho face legal challenges not experienced by non-LGBTQ residents. Lesotho does not recognise same-sex marriages or civil unions, nor does it ban discrimination on the basis of sexual orientation or gender identity.
Nigeria does not recognize same-sex marriages or civil unions. Homosexuality among men is punishable with up to 14 years' imprisonment in Southern Nigeria and may result in capital punishment for men in areas under Sharia Islamic law in the northern part of the country. Individuals who "perform, witness, aid or abets" a same-sex marriage may face severe penalties.
Tongqi are Chinese women who have married gay men. Similarly, tongfu is the corresponding neologism for Chinese men who have married lesbian women. Liu Dalin, among the first sexologists in mainland China, estimated that 90% of gay men in China marry a heterosexual woman. By comparison, 15–20% of gay men married women in the United States as of 2010. Sexologist and sociologist Li Yinhe believes there are 20 million male homosexuals in China, of whom 80% marry women.
Same-sex marriage has been legal in South Dakota since June 26, 2015 when the U.S. Supreme Court ruled in Obergefell v. Hodges that the U.S. Constitution guarantees same-sex couples the right to marry. Attorney General Marty Jackley issued a statement critical of the ruling but said that the state would comply and recognize same-sex marriages. Previously, South Dakota had restricted marriage to the "union of a man and a woman" both by statute and in its State Constitution.
Same-sex marriage is not legal in Namibia. On 16 May 2023, the Supreme Court ruled 4–1 that same-sex marriages concluded outside of Namibia should be recognised for residency purposes. A bill seeking to overturn the ruling has passed the Parliament of Namibia and awaits President Nangolo Mbumba's signature.
Lesotho does not recognise same-sex marriages or civil unions. The Marriage Act, 1974 does not provide for the recognition of same-sex unions.
Angola does not recognize same-sex marriages or civil unions. The Family Code of Angola recognizes de facto unions but only for opposite-sex couples and bans same-sex marriage.
Mozambique does not recognize same-sex marriages or civil unions. The Family Code of Mozambique recognizes de facto unions but only for opposite-sex couples and bans same-sex marriage. Some protests for the legal recognition of same-sex marriage occurred in 2006, as discussions on this issue were ongoing in South Africa.
Myanmar does not recognise same-sex marriage or civil unions. Burmese law recognises different family laws for its four main religions, Buddhism, Christianity, Islam and Hinduism, none of which permit same-sex unions.
Status of same-sex unions around the world | ||
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| Africa |  | |
| Americas | ||
| Asia | ||
| Europe |
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| Oceania |
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| Antarctica |
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| Same-sex marriage prohibited by constitutional amendment |
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| Same-sex marriage and civil unions prohibited by constitutional amendment | |
