The High Court has dismissed a constitutional petition seeking to invalidate key provisions of the Marriage Act that allow the dissolution of Christian marriages, ruling that Kenya's divorce laws do not violate religious freedom and do not discriminate against Catholics.
In the judgment, the court rejected claims by petitioner Peter Gathirimu that Sections 65, 66 and 73 of the Marriage Act, 2014 were unconstitutional because they permit divorce, contrary to Catholic doctrine, which considers sacramental marriage indissoluble.
The petitioner had argued that Parliament failed to recognise Catholic Canon Law while accommodating Islamic personal law, thereby violating the rights of Catholics under Articles 27, 32 and 45 of the Constitution. He further contended that being subjected to divorce proceedings infringed on his freedom of religion and conscience.
However, the court found that the Marriage Act merely provides a civil framework for marriage and divorce and does not compel any person to dissolve a marriage.
"The impugned sections all use the term 'may', which connotes that parties in a marital relationship are not compelled to procure a divorce or separation," the judge held.
The court emphasised that freedom of religion does not entitle individuals to impose their religious beliefs on others through civil law.
"While freedom of religion is protected under the Constitution, it cannot be used to invalidate laws that serve legitimate public purposes," the judge said.
The court further noted that the petition was largely motivated by the petitioner's opposition to divorce proceedings filed by his former spouse, which have since been concluded.
"It is clear that the petitioner intended to prevent his wife from divorcing him because his Catholic faith disallows divorce," the court observed.
Rejecting claims of discrimination, the judge held that exempting Catholics from the divorce provisions would itself violate constitutional guarantees of equality.
"Equality requires that all citizens have the same legal rights, even if some choose not to exercise them," the court stated.
The court also dismissed allegations that Parliament ignored Catholic views during the enactment of the Marriage Act, finding that sufficient public participation was conducted through newspaper notices and stakeholder consultations.
"A failure by a specific denomination to successfully steer the final statutory language to its theological liking does not equate to a failure of public participation by Parliament," the judge ruled.
In a notable section of the judgment, the court observed that marriage has both spiritual and civil dimensions, but once recognised by the State, it is subject to the law. The judge added that the Constitution protects the freedom to marry and guarantees equal rights at the dissolution of marriage, but does not create a constitutional right to prevent divorce.
The court ultimately upheld the constitutionality of the challenged provisions, finding that they respect individual autonomy, protect spouses in broken marriages and strike a balance between religious beliefs and constitutional rights.
Comments
Sign in with Google to comment, reply, and like comments.
Continue with Google