² Chairman: Mr. Justice Spry; Secretary: Dr. E. Cotran. Report, Government Printer, Nairobi, 1968.

³ See, for example, the articles in the Special Issue of the East African Law Journal, March-June 1969, vol. V, nos. 1 and 2; and F. M. Kassam, “Report of the Kenya Commission on Marriage and Divorce; a critique”, (1969) 2, Eastern Africa Law Review, 179–219.

⁴ E.g., Ghana, Uganda. For an up-to-date survey see Morris, H. F., “Review of developments in African marriage law since 1950”, in Phillips, Arthur & Morris, Henry F., Marriage Laws in Africa, O.U.P., 1971.Google Scholar

⁵ Section 1. Section 166, which repealed the section of the Penal Code defining the offence of bigamy, came into operation on February 12th, 1971. For a succinct comment see Y. P. Ghai, “The new marriage law in Tanzania”, (1971) 11 Africa Quarterly (New Delhi), 101–109. It is curious that Professor Ghai does not refer at all to the close correspondence between the Tanzanian Act and the Kenya proposals—the more so in that he remarks upon the contrast between the procedure followed in formulating the proposals in Kenya and that adopted to stimulate public discussion of Government policy in this matter in Tanzania (at p. 103).

^{page 20 note 1} Paragraph 5 of the White Paper.

^{page 20 note 2} For example, see Rattansey v. Rattansey, [1960] E.A. 81.

^{page 20 note 3} Op. cit., p. 19, n. 5, p. 101. For a contrasting view see the article by Kassam, cited p. 19, n. 3, supra, pp. 209–210.

^{page 20 note 4} See especially Government Notice No. 279 of 1963.

^{page 20 note 5} Anderson, J. N. D., Islamic Law in Africa, London, H.M.S.O., 1955; Cass, 1970, 123–124.Google Scholar

^{page 20 note 6} E.g., Government Notice No. 222 of 1967, under the Islamic Law (Restatement) Act, 1964, No 56.

^{page 21 note 1} In effect this was apparently intended to apply only if one party at least was a Christian, for it was not available for “marriages to which each of the parties is a Mohammedan, Hindu, Buddhist or, being a native of Africa, is a pagan or professes no generally recognized form of religion” (s.3). However, the new Act (s.165(5) ) provides retrospectively that any marriages under the Marriage Ordinance (or purported to have been performed thereunder) shall not be invalid “by reason only of the fact that both the parties to such marriage or purported marriage were Muslims, Hindus, Buddhists, Pagans or persons professing the same religion or professing no generally recognized form of religion”. The terms of this provision, with the change from “each” in the Ordinance to “both” in the Act, leave a lingering doubt as to whether a marriage has been validated where one party was, for example, a Muslim and the other a Hindu.

^{page 21 note 2} Sections 163, 164 and Schedules.

^{page 21 note 3} Paragraph 3 of the White Paper.

^{page 21 note 4} Interim Constitution of Tanzania, 1965, Act No 43, s.85(1).

^{page 21 note 5} Although in providing for the recognition of foreign marriages, the Act makes it a condition that they should have been contracted with the free and voluntary consent of the parties or that “the parties have freely and voluntarily consummated the marriage” (s.36)(c) (this provision did not appear in the Kenya Bill). It is indeed ironic that, as Professor Ghai has commented, “the debate on the new law was going on at the same time as marriages were being forced on young, unwilling girls in Zanzibar to men several times older than them … the contradiction of basic values and assumptions between the two systems within one state is a cause for worry” (in the article cited supra, p. 19, n. 5, at p. 109). The “forced marriages” issue had come to a head in 1970 when Zanzibar was the focus of farreaching criticism, not least from Tanganyika, for the alleged marriages of non-African girls to prominent African leaders. President Karume justified these events by reference to Islamic law and to the need to break down racial separatism on the islands.

^{page 22 note 1} Section 167.

^{page 22 note 2} Government Notice No. 14 of 1971.

^{page 22 note 3} The principal changes made before enactment of the Bill were these: (1) The removal of one paragraph of the clause listing forms of marriage (see p. 28, n. 1, infra). (2) The deletion of clause 40 on “Legitimacy” (although, presumably by an oversight the heading to the part of the Act still includes “Legitimacy”; which is not in fact dealt with). Clause 40 would have followed the Kenya Bill by providing that children born to persons whose marriage is void are nevertheless to be deemed legitimate for all purposes, and that children of a voidable marriage would not be rendered illegitimate by a decree anulling the marriage; the latter rule was in any case embodied elsewhere in the Bill and is given effect in the Act (s.98) but the former rule is now omitted—perhaps because of the complexities of applying such a general rule of legitimacy to the various kinds of marriage now embraced in the common code. Professor Ghai (in the article cited p. 19, n. 5, at pp. 108–109) regrets that the opportunity was lost to reform the law of legitimacy. (3) The addition of a definition of “adopted child” in clause 2. (4) The addition of sub-clause (3) to clause 17, permitting a kadhi, minister of religion or person officiating at a customary law marriage to refuse to celebrate a marriage if some consent, additional to those specified by the Act but required by the religion or customary law, is wanting.

^{page 22 note 4} Section 167 (3).

^{page 23 note 1} Paragraph 28 of the White Paper.

^{page 23 note 2} Ibid., paragraph 10.

^{page 23 note 3} East African Standard, September 6th, 1969.

^{page 23 note 4} [1969] E.A.L.J. 107–140.

^{page 25 note 1} The Law of Marriages (Forms and Fees) Regulations, 1971, Government Notice No. 97, Form R.G.M. 7. Professor Ghai states that “the parties can make a declaration at the time of the marriage as to which system they want applied to them” (in the article cited p. 19, n. 5, at p. 105); however, the Act appears to include no such provision, although such a declaration would no doubt be relevant evidence to prove the contrary to the relevant statutory presumption of monogamy or polygamy, as the case may be.

^{page 25 note 2} A resident or district magistrate (i.e., not a primary court magistrate) (s.11(2) ); under the Kenya Bill such a declaration would be made before a Registrar.

^{page 25 note 3} Section 11(5), discussed below.

^{page 26 note 1} Section 36; the requirement of free consent was not specified in the comparable provision of the Kenya Bill: clause 44.

^{page 26 note 2} For the previous position see Read, James S., “When is a wife not a wife?” (1964) 1 Denning Law Journal, 4–20Google Scholar; for a discussion of the new law see Morris, H. F., Evidence in East Africa, London, 1968, 186–191Google Scholar, and Read, James S., “Tanzania”, in Rubin, N. & Cotran, E. (eds.), Annual Survey of African Law, 1967, London, 1970, 157–198, at pp. 181–182.Google Scholar

^{page 26 note 3} Section 145. The point is not precisely covered for all cases. A man intending Christian marriage must declare that he has no wife already (s.18(2)(i) ), but if a civil or other marriage is intended, while the parties must state the nature of their intended marriage, they are only required to state the fact (and not the nature) of any existing marriage.

^{page 27 note 1} The legal position is somewhat complicated. Section 11, which provides for the conversion of marriages, ends:

“(5) No marriage between two Christians which was celebrated in a church in Christian form may, for so long as both the parties continue to profess the Christian faith, be converted from monogamous to polygamous and the provisions of this section shall not apply to any such marriage, notwithstanding that the marriage was preceded or succeeded by a ceremony of marriage between the same parties in civil form or any other form.”

Section 15, which forbids a man “married by a monogamous marriage” contracting another marriage, a polygamously married man contracting a monogamous marriage and a married woman from contracting any other marriage, ends:

“(4) Nothing in this section shall be construed as preventing the parties to a marriage to go through another ceremony of marriage:

Provided that where parties who are already married go through another ceremony of marriage, such subsequent ceremony shall not, subject to the provisions of sub-section (5) of section 11, affect the status or the legal consequence of their first marriage.”

^{page 28 note 1} The section (25) is somewhat curiously drafted, opening with a repetition which is otiose:

“(1) A marriage may… be contracted in Tanganyika—

(a) in civil form; or

(b) in civil form or, where both the parties belong to a specified religion, according to the rites of that religion; or

(c) if the intended husband is a Muslim, in civil form or in Islamic form; or

(d) where the parties belong to a community or to communities which follow customary law, in civil form or according to the rites of the customary law.”

(If the parties belong to different communities with different customary law marriage rites, the Act does not specify which is “the customary law” the rites of which are to be followed.) The Bill originally made separate provision for Christian marriage: “where both parties are Christians, in civil form or in a church in Christian form”; this was deleted before enactment.

^{page 28 note 2} Law of Marriage (Specified Religions) Order, 1971, Government Notice No. 111.

^{page 29 note 1} See p. 20, n. 6.

^{page 29 note 2} Certain conditions for annulment on these grounds are prescribed by ss. 97, 98: e.g., if on the ground that the wife was under 18 and parental consent was absent, the petition must be filed before the wife attains the age of 18; her parent or guardian may petition, whereas in the case of any other ground only a party to the marriage may petition. There is an inconsistency between s. 39, which refers only to the wife lacking consent, and s. 97(2) which refers to “one of the parties” and “his other parent”—perhaps because the Kenya Bill would have required parental consent for either party (under the age of 21) and the model of clause 106 there may have been followed although the substantive provision in Tanganyika does not require parental consent for the husband. Where the ground is insanity, disease or pregnancy the fact alleged must have been unknown to the petitioner at the time of marriage, no marital intercourse shall have taken place since discovery of the fact and the petition must be brought within one year of the marriage.

^{page 29 note 3} The Declaration of Local Customary Law, Government Notice No. 279 of 1963, provided a number of rules concerning the payment of “bride-price” but also made it clear that “bride-price” as such was no longer a legal essential for the validity of marriage in the areas to which that Declaration extended.

^{page 30 note 1} See p. 20, n. 4.

^{page 30 note 2} In an African state with many scattered communities and poor communications, a high degree of illiteracy and Government presence generally restricted to a small number of hard pressed officials, any requirements of registration of personal affairs are likely to produce difficulties. These existed already under the previous law: for an illustration see the unusual Government Notice No. 62 of 1970, “Administrative directions” under the Marriage Ordinance, by the Second Vice-President; this noted that completed registers of marriages were not being submitted to the Registrar-General as required by the Ordinance, and directed all Registrars of Marriage and any other persons having custody of such registers to send them forthwith to the Registrar-General.

^{page 31 note 1} The Administrator-General has been appointed as Registrar-General (see Government Notice No. 107 of 1971, as amended by Government Notice No. 115 of 1971—in the original notice the Registrar-General was appointed Registrar-General).

^{page 31 note 2} Government Notice No. 106 of 1971.

^{page 31 note 3} Establishing an index of names in an African state may be expected to present imponderable problems, as a glance at an index to a volume of African law reports will indicate. , Cartwright & , Read, The Penal Codes of East and Central Africa, Synoptic Table and Index of Reported Cases, London, 1963, adopted the practice of indexing by the final name, as in such cases as Lenson Ambindwile s/o Mafubila v. R. or Abdulla Suleiman El Harthi v. R., but this no doubt well-intentioned effort to impose a western concept of surnames upon unsuspecting persons was rightly criticised by a learned authority who recommended a different course: see A. N. Allott, [1963] J.A.L. 64–65, noting, however, that “It is for consideration whether the adoption of a surname should not be made compulsory in modern African states”, as in the example there given from Ethiopia.Google Scholar

^{page 32 note 1} See the Kenya Commission Report, para. 174. See also per Brett, F. J., in Lawal v. Younan, [1961] 1 All N.L.R. 245, 247; the present writer would agree with the comment on this obiter dictum by Park, A. E. W. in The Sources of Nigerian Law, London, 1963, 33.Google Scholar

^{page 32 note 2} I.e., in the absence of a local equivalent of the Law Reform (Married Women and Tortfeasors) Act, 1935.

^{page 32 note 3} This was precisely the formula recommended by the Kenya Commission.

^{page 32 note 4} [1953] 1 Q.B. 63.

^{page 32 note 5} [1970] 3 W.L.R. 255.

^{page 32 note 6} Published Working Paper No. 42: Family Property Law, 1971.

^{page 34 note 1} [1960] E.A. 81.

^{page 34 note 2} See Government Notice No. 108 of 1971. The Arbitration Tribunals were set up under the Arbitration Tribunals Regulations, 1969, Government Notice No. 219 of 1969, made under s. 15A of the Magistrates' Courts Act, 1963, as amended by Act No. 18 of 1969.

^{page 34 note 3} Appointment of Communal Conciliatory Boards Orders, 1971, Government Notices Nos. 196 and 211 of 1971.

^{page 37 note 1} A new subsection (3A) inserted in s. 9 of the Ordinance by the new Act, Second Schedule.

^{page 37 note 2} Cited at p. 20, n. 6 and p. 20, n. 4, supra.

^{page 38 note 1} The point is made by Diwan, “Hindu Marriage Act, 1955” (1957), I.C.L.Q. 263, cited by Kassam, op. cit., p. 19, n. 3, p. 211.

^{page 38 note 2} Op. cit., p. 19, n. 5, p. 109.

^{page 38 note 3} Ibid., p. 19, n. 3, supra, pp. 209–210.