The opposite sex for the intersex person; assumption of binary in Kenya’s Constitution
Posted: 13 October, 2023 Filed under: Esther-Blessing Nasimiyu | Tags: binary assumption, Constitution of Kenya, equality, inclusion, intersex, intersex persons, Kenya National Commission on Human Rights, non-discrimination, opposite sex, protection of minorities, right to marry, same-sex marriages, sexual minorities 1 Comment
Author: Esther-Blessing Nasimiyu
Student, Kabarak Law School
The 2010 Constitution of Kenya is notable for recognising the family system through the provision of the right to marry in article 45(2).[1] For ease of reference, article 45(2) provides that every adult has the right to marry a person of the opposite sex, based on the free consent of parties. The sub-article’s phrasing breeds a significant complication due to the insertion of the term ‘opposite sex’. This is a blatant disregard of the existence of Kenyan adults who cannot conform to either gender due to being intersex.
People with mental disabilities ALSO have the right to marry in Kenya
Posted: 28 May, 2014 Filed under: William Aseka | Tags: African Union Commission on International Law, Constitution of Kenya, Convention on the Rights of Persons with Disabilities, CRPD, equality, ICCPR, ICESCR, international law, Kenya, Marriage Act, Marriage Bill, mental disabilities, non-discrimination, polygamous marriages, right to marry 3 Comments
Author: William Aseka
Human Rights Fellow at Burton Blatt Institute, Syracuse University
The Marriage Bill (now Act) 2014 has elicited different reactions from Kenyans. Some mostly women, have argued that the law will allow men to engage in polygamous marriages. Some have hailed the law as consolidating the different types of marriages into one piece of legislation. However, the people with intellectual and psychosocial disabilities have completely been left out of this debate. The law clearly discriminates and expressly denies people with mental disorders from exercising their right to marry. Section 11(2)(b) of the Marriage Act 2014 provides:-
Consent is not freely given where the party who purports to give it is suffering from any mental disorder or mental disability whether permanent or temporary…
The Act further provides in section 73 that if one suffers from ‘recurrent bouts of insanity’ then the partner is allowed to have the marriage annulled. This essay seeks to argue that the Marriage Act 2014 not only violates Kenya’s obligation under international law but also violates the Constitution of Kenya 2010 Article 27(4), which proscribes discrimination based on disability.
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