Section 5 of the Marriage Act (Chapter 280) is headed “Protection of women”. It is the principal statutory limit on customary marriage.
Section 5(1) — the power to forbid
A Magistrate of a Local Court may, by order, forbid the marriage of a woman in accordance with custom, or purportedly in accordance with custom, where the woman objects to the marriage or purported marriage and —
(a) excessive pressure has been brought to bear to persuade her to enter into the marriage; or
(b) in the circumstances it would be a hardship to compel her to conform to custom.
| Element | What it requires |
|---|---|
| A Local Court Magistrate | The jurisdiction is at the Local Court — the most accessible court, close to the community |
| A woman | The section protects women specifically |
| In accordance with custom, or purportedly so | Covers a marriage claimed to be customary even if it is not |
| The woman objects | Essential. The order cannot be made against her wishes |
| Excessive pressure or hardship | Either limb suffices — they are alternatives |
The two limbs
The test is excessive pressure, not any pressure. Customary marriage ordinarily involves the two families in negotiation, and family influence is a normal part of it. Paragraph (a) is directed at pressure that goes beyond that — threats, force, confinement, or persistent coercion that overbears the woman’s will.
Note that the pressure need not come from the intended husband. The words are general: “excessive pressure has been brought to bear”, by whomever.
The second limb requires no pressure at all. It asks whether in the circumstances it would be a hardship to compel her to conform to custom.
That is a wide discretion, and it is the limb that covers cases where the custom itself — rather than anyone’s conduct — produces the injustice. Examples that would ordinarily engage it include a marriage arranged in settlement of a dispute or as compensation, a very large age difference, a marriage to a man the woman has never met, or a marriage that would require her to leave employment, education or her children.
The words “in the circumstances” direct attention to the particular woman’s position, not to the custom in the abstract.
Section 5(2) — the offence
A person who marries, or purports to marry, a woman in contravention of an order under subsection (1) is guilty of an offence.
Penalty: a fine not exceeding K400 or imprisonment for a term not exceeding six months, or both.
The offence attaches to the person who marries or purports to marry the woman. The order must exist first — section 5(2) does not create an offence of forcing a marriage where no order has been made.
Conduct that would support a section 5(1) order will often be criminal independently of the Marriage Act:
- Where the woman is under 18, section 86 of the Lukautim Pikinini Act 2015 creates an offence of child marriage, and section 80 addresses harmful customary practices;
- Deprivation of liberty, assault and sexual offences under the Criminal Code Act (Chapter 262);
- Where the woman is under marriageable age, section 58 of the Marriage Act.
Section 5(3) — annulment after the event
Where a marriage or purported marriage by custom has been entered into in contravention of this section, a Local Court may, on application made by or on behalf of the woman at the first reasonably practicable opportunity after the marriage, order that the marriage be annulled as from the date of the order — and may make such further or other order, whether to adjust property rights as though the marriage were dissolved in accordance with custom, or otherwise, as to it seems just.
“By or on behalf of the woman”. A relative, a welfare officer or a friend may apply for her. She need not come to court alone.
“At the first reasonably practicable opportunity”. There is no fixed period. What is reasonably practicable depends on her circumstances — where she is, whether she is free to travel, and whether she knows of the right.
Annulment is from the date of the order, not from the beginning. So it operates like a dissolution rather than a declaration that there was never a marriage — which is why property adjustment is needed.
Property adjustment on customary lines. The court may adjust property rights as though the marriage were dissolved in accordance with custom. That is significant where bride price has been paid: the customary rules about return of bride price on dissolution can be applied, rather than the woman being left to negotiate.
The residual words “or otherwise, as to it seems just” give the court a wide further discretion.
In practice
- Go to the Local Court. Section 5 is deliberately placed in the most accessible court. No lawyer is required to make an application.
- Act before the marriage if possible. A section 5(1) order prevents the marriage and makes proceeding with it an offence.
- If it has already happened, apply promptly — section 5(3) requires the application at the first reasonably practicable opportunity.
- Ask for property orders too. Section 5(3) allows the court to deal with bride price and other property in the same order.
- Where the woman is under 18, the Lukautim Pikinini Act 2015 also applies, and a Family Court may make protection orders.
Sources
- Marriage Act (Chapter 280) — ss 3, 5, 58
- Lukautim Pikinini Act 2015 — ss 80, 86; Criminal Code Act (Chapter 262)
- Constitution — ss 32, 36, 55
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.