Are marriages between cousins legal?

Dear Harold,

My cousins are married. Socially, the community knows they are cousins and as a family we wonder what to do and what provisions of the law says on this type of marriage. They married secretly before both families got wind of their union much later. The community now accuses them and my generation of aping behaviours from the West. What is your take on this as families are against the marriage?

Tom, Nairobi.

Dear Tom,

You have not explained whether they were married in church or under customary law. But, according to Article 45(2) of the new Constitution, every adult has the right to marry a person of the opposite sex based on free consent of the parties.

However, Section 35 (1) of the Marriage Act outlaws marriages within prohibited degrees of consanguinity and affinity. Legally, consanguinity refers to relationships between blood relations. Rules on consanguinity are based on genetic considerations whereas affinity arises from social policy. For instance, cousins, brothers, sisters, nieces and nephews.

Affinity arises following marriage and one may not be allowed to marry his or her in-laws. However, according to customary law among the Luhya, a man was allowed to marry his wife’s sister while among the Teso, a son could marry his step-mother — especially when his father died and left young widows.