After the August elections, anti-rights groups started to clamour for the Ministry of Labour and Social Protection to revive the 2019 National Policy on Family Promotion and Protection, which was drafted by an isolated handful of individuals and was devoid of public participation. This draft was not signed into policy and so never implemented.

With the passage of his first executive order, the president has now responded with a thumbs-up, indicating that establishing a family policy is one of his priority areas.

The wording of the draft policy is problematic. It promotes an extremely narrow definition of nuclear family and stigmatises all other families – including women-headed households, families born through surrogates, polygamous families and same-sex couples. This exclusion goes against the very values that the president has always espoused as a Christian.

A Kenyan LGBT activist (left) is overwhelmed by emotion after the postponement of a court ruling on an anti-homosexual law in Nairobi on 22 February 2019. (Photo: EPA-EFE / Daniel Irungu)

Kenyan families, like most African families, cannot be boxed into neat nuclear definitions. Many of us are descendants of polygamous grandparents, with a huge collection of blood relatives and family members who were taken into our household after wars, drought and HIV, or adopted after the death of a parent.

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While other African countries such as Rwanda, Ethiopia and South Africa have “family and social protection” policies, their versions protect vulnerable family and community members from injustices arising from oppressive social structures. Yet the proposed draft policy on family seeks to promote the exclusionary, conservative Christian model of the family, prevent divorce, and disregard other family models.

By asserting that “family cohesion is founded on the unity of spouses”, the draft stigmatises and excludes single-parent families and divorcees. By defining marriage as being between “two persons of the opposite sex”, it excludes polygamous and same-sex partnerships, which are among us whether we like it or not.

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“The primary function of the family is to ensure the continuation of society, biologically through procreation, and to promote and emphasise marriage preparation,” according to the policy. Such statements already isolate child-free couples! It also identifies “the key policy issues” as being related to “ensuring that the family that emerges from marriages becomes a true foundation for social order in Kenya”.

The document, interestingly, prioritises “preventing divorce” by any means necessary, including alternative dispute resolution, but this culture known as “vumilia ndoa” does not recognise the vulnerability of women and children in abusive marriages. Contrary to the Marriage Act, the policy discourages divorce as a valid solution and prioritises “protecting the union” over protecting the women in abusive marriages.

Agnes Tirop of Kenya smiles after winning the women’s 1,500m at the IAAF Diamond League meeting in Stockholm, Sweden, on 30 May 2019. (Photo: EPA-EFE / Fredrik Sandberg)

Family and relatives at the funeral for murdered Olympian Agnes Tirop at her parent’s home in Kapnyamisa village, Nandi County, on 23 October 2021. (Photo: EPA-EFE / Daniel Irungu)

The recent death of Olympic marathoners Edith Muthoni and Agnes Tirop taught the nation that we must prioritise safety over marriage, particularly in a country where 42% of women aged 15 to 49 consider that a husband is justified in hitting or beating his wife in certain instances, according to research.

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Regionally, the draft does not match up to the African Union’s 2004 Plan of Action on the Family in Africa, which requires member states to create a conducive environment for ALL family members to thrive. Compared with other countries’ policies, Kenya’s draft offers no practical help – no income support services, no child daycare, no campaigns against domestic violence, no promotion of gender equality, nor the extension of economic and social opportunities to women. So, the policy’s intention appears simply to identify those who are worthy of protection and those who are not – based on a discriminatory view of the family.

Protesting men carry a Marabou stork in Kisumu, Kenya, after the country’s electoral commission chairperson declared Deputy President William Ruto the winner over Raila Odinga following a close presidential election on 15 August 2022. (Photo: Ed Ram / Getty Images)

Unless the text of the 2019 version of the family protection policy is revised, the current draft will subject more women to violent marriages, further stigmatise divorce, and exclude the diverse relationships of so many of our families. DM/MC

Tabitha Saoyo is a feminist human rights lawyer. She draws inspiration for this article from her own experiences working on the complexities of marriage and divorce as a former FIDA Programs Officer. She currently sits as an Amnesty International (Kenya) Board Member.

Nerima Were is a feminist and human rights activist, and an advocate of the High Court in Kenya. She is the Deputy Executive Director at the Kenya Legal and Ethical Issues Network on HIV & AIDS, as well as a tutorial fellow and doctoral candidate at the University of Nairobi.