79-year-old man challenges law banning bigamy in Christian marriage

Boniface Ndura, a Kenyan man challenging the constitutional laws criminalising bigamy in Christian marriage. [Osinde Obare, Standard]

The High Court in Kitale will today hear the landmark constitutional case filed by Boniface Ndura Koimburi, a 79-year-old Kenyan citizen, challenging the constitutionality of laws that criminalise bigamy under Christian marriage.

The Court is set to determine whether the petition raises substantial questions of law warranting empanelment of a three-judge bench, as provided under Article 165(4) of the Constitution.

And whether the Parliament of Kenya should be enjoined as a party to the proceedings, given its role in enacting the impugned laws.

Koimburi’s petition, filed through his legal counsel, D.M. Wanyama, seeks to challenge provisions in both the Marriage Act and the Penal Code that prohibit Christian men from marrying more than one wife.

Ndura argues that these provisions discriminate on religious grounds and violate his fundamental rights under Articles 27, 32, 36, and 45 of the Constitution.

The key constitutional issue raised by the petitioner is that the criminalization of bigamy (Section 171 of the Penal Code) allegedly infringes Mr. Koimburi’s religious freedom and freedom of conscience.

The Marriage Act’s enforcement of monogamy in Christian unions, while allowing polygamy in Muslim and customary marriages, is said to constitute religious discrimination.

The Christian Religious Education (CRE) curriculum developed by the Kenya Institute of Curriculum Development (KICD) is also under scrutiny for allegedly presenting a biased view of Christian marriage, excluding polygamous interpretations within Christian doctrine.

The Petitioner contends that the case raises novel and complex constitutional questions that have never been settled by Kenyan courts and have profound public interest implications.

These include the intersection of religious freedom, marriage rights, education policy, and equal treatment under the law.

Koimburi seeks certification under Article 165(4) for the matter to be heard by a bench of at least three judges. He argues that the petition meets all criteria for such empanelment due to its novelty and jurisprudential complexity, and broad public interest.

Regarding the joinder of Parliament, the Petitioner maintains that the Attorney General adequately represents the State’s interest in defending the impugned laws.

The High Court will determine whether the constitutional threshold for empanelment has been met and whether the petition can proceed without joining Parliament as a party.

This case is poised to set a significant precedent on the legality of polygamy within Christian marriage and the State’s role in regulating religious doctrine and personal family choices.