as published on the Daily Nation website
Current Constitution
It contains no express provision on marriage other than in Section 82(4)(b), where the exception to the right to equal treatment is created with regard to personal law matters such as marriage, divorce, and burial.
However, the right to marriage may be inferred from the freedom of association and in Section 80, which states a person’s right of association and assembly in the furtherance of the individual’s interest.
This does not expressly outlaw same sex marriage but read together with the fact that the right of association may be lawfully circumscribed by issues of morality, it can be contended that the law that outlaws homosexuality would find anchor in an argument that it is against public morality. This is going by the fact that homosexuality is outlawed under the Penal Code as one of the offences against morality.
Proposed Constitution
Article 45 says the following about family and marriage:
Affirms the family as the natural and fundamental unit of society, which must be recognised and protected by the State, presumably through laws and policies.
It affirms the right of every adult to marry a person of the opposite sex based upon free consent. This prohibits marriage of any other kind, including same sex unions.
It establishes the absolute equality of parties to marriage (husband and wife) from the inception, during the marriage, and upon its dissolution (that is upon divorce). In short, this law dictates complete parity between husband and wife at all times in marriage and in every respect.
Parliament is required to pass laws for recognition of customary marriages to the extent that the marriages are consistent with the Constitution.
