• TABLE OF CONTENTS
HIDE
 Front Cover
 Title Page
 Table of Contents
 Preface
 Introduction
 Customary procedure of the bridewealth...
 The marriage outlay: Bridewealth...
 Assembly and distribution...
 The maintenance of equilibrium:...
 Legal implications of the bridewealth...
 Advertising






Group Title: The Rhodes-Livingstone papers - no. 18
Title: Gusii bridewealth law and custom
CITATION PAGE IMAGE ZOOMABLE PAGE TEXT
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/UF00072076/00001
 Material Information
Title: Gusii bridewealth law and custom
Series Title: The Rhodes-Livingstone papers
Physical Description: iv, 67 p. : ; 25 cm.
Language: English
Creator: Mayer, Philip
Publisher: Published for the Rhodes-Livingstone Institute by G. Cumberlege, Oxford University Press
Place of Publication: Cape Town ;
New York
Publication Date: 1950
 Subjects
Subject: Gusii (African people) -- Social life and customs   ( lcsh )
Bride price -- Kenya   ( lcsh )
Genre: non-fiction   ( marcgt )
 Notes
Statement of Responsibility: by Philip Mayer.
 Record Information
Bibliographic ID: UF00072076
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: African Studies Collections in the Department of Special Collections and Area Studies, George A. Smathers Libraries, University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: oclc - 00321268
lccn - 52001060

Table of Contents
    Front Cover
        Front Cover
    Title Page
        Page i
        Page ii
    Table of Contents
        Page iii
        Page iv
    Preface
        Page v
    Introduction
        Page 1
        Page 2
        Page 3
        Page 4
        Page 5
    Customary procedure of the bridewealth transfer
        Page 6
        The transfer of ownership
            Page 6
            Page 7
        The transfer of possession
            Page 8
            Page 9
            Page 10
            Page 11
        Irregular marriages
            Page 12
        Significance of customary mode of bridewealth transfer
            Page 13
            Page 14
    The marriage outlay: Bridewealth proper and marriage gifts
        Page 15
        The composition of the bridewealth proper
            Page 15
            Page 16
        The customary gifts, sacrifices and entertainments
            Page 17
            Page 18
            Page 19
            Page 20
            Page 21
        Functions of customary gifts and entertainments
            Page 22
            Page 23
            Page 24
    Assembly and distribution of bridewealth
        Page 25
        Rules of allotment of bridewealth within the family
            Page 26
            Page 27
            Page 28
            Page 29
            Page 30
        Remaining aspects of assembly and distribution
            Page 31
            Page 32
            Page 33
            Page 34
            Page 35
            Page 36
            Page 37
    The maintenance of equilibrium: Replacement and recompense
        Page 38
        Replacement of bridewealth animals by the donor
            Page 39
            Page 40
            Page 41
        Recompense for loss of a wife
            Page 42
            Page 43
            Page 44
            Page 45
            Page 46
            Page 47
            Page 48
            Page 49
            Page 50
            Page 51
            Page 52
            Page 53
            Page 54
            Page 55
            Page 56
    Legal implications of the bridewealth transfer
        Page 57
        The bridewealth principle in family law
            Page 57
            Page 58
            Page 59
            Page 60
            Page 61
            Page 62
            Page 63
            Page 64
        The bridewealth principle in the law of inheritance
            Page 65
            Page 66
            Page 67
    Advertising
        Page 68
        Page 69
        Page 70
Full Text


THE RHODES-LIVINGSTONE PAPERS


GUSI BRIDEWEALTH


LAW AND CUSTOM


BY

PHILIP MAYER


Six Shillings and Sixpence


OXFORD UNIVERSITY PRESS


NUMBER EIGHTEEN









THE RHODES-LIVINGSTONE PAPERS


NUMBER EIGHTEEN


GUSI BRIDEWEALTH


LAW AND CUSTOM




BY


PHILIP MAYER, D.PHIL. (Oxon.)















Published for
THE RHODES-LIVINGSTONE INSTITUTE
by
GEOFFREY CUMBERLEGE
OXFORD UNIVERSITY PRESS
CAPE TOWN LONDON NEW YORK
1950



















OXFORD UNIVERSITY PRESS

AMEN HOUSE, LONDON, E.C.4
Glasgow Bombay Calcutta
Madras Melbourne Wellington
New York Toronto Cape Town
GEOFFREY CUMBERLEGE
PUBLISHER TO THE
UNIVERSITY


MORIJA PRINTING WORKS
MORIJA, BASUTOLAND













CONTENTS



PREFACE ....................... v
INTRODUCTION ......................

I. CUSTOMARY PROCEDURE OF THE BRIDEWEALTH
TRANSFER .. .. .. .. .. ..
A. THE TRANSFER OF OWNERSHIP. I. The opening of negotiations.
2. Okomana: the selection of cattle. 3. Legal significance of the
cattle-view (okomana) .. .. .. .. .. .. .... .. 6
B. THE TRANSFER OF POSSESSION. I. Orthodox custom: highland
areas. 2. Custom of lowland areas. 3. Enyangi ...... 8
C. IRREGULAR MARRIAGES ................ .12
D. SIGNIFICANCE OF CUSTOMARY MODE OF BRIDEWEALTH
TRANSFER ... ......... .... .. 13

II. THE MARRIAGE OUTLAY: BRIDEWEALTH PROPER
AND MARRIAGE GIFTS
A. THE COMPOSITION OF THE BRIDEWEALTH PROPER. .. ... 15
B. THE CUSTOMARY GIFTS, SACRIFICES AND ENTERTAINMENTS.
I. Egechabero cycle. 2. Enyangi cycle .......... 17
C. FUNCTIONS OF CUSTOMARY GIFTS AND ENTERTAINMENTS .. 22

III. ASSEMBLY AND DISTRIBUTION OF BRIDEWEALTH 25
A. RULES OF ALLOTMENT OF BRIDEWEALTH WITHIN THE FAMILY
I. The rules of priority. 2. Restrictions on the exercise of bride-
wealth rights.. ........ .. ..... .. 26 '
B. REMAINING ASPECTS OF ASSEMBLY AND DISTRIBUTION.
I. Assembly. 2. Distribution .. .. .. .. .. .. ... 31

IV. THE MAINTENANCE OF EQUILIBRIUM: REPLACE-
MENT AND RECOMPENSE ............ 38
A. REPLACEMENT OF BRIDEWEALTH ANIMALS BY THE DONOR,
I. Procedure for claiming replacement. 2. Natural replacement
by progeny. 3. Type of animal accepted as replacement.
4. Responsibility for loss .......... ...... 39







iv

B. RECOMPENSE FOR Loss OF A WIFE. I. Grounds for recompense.
2. Responsibility for the debt. 3. Recompense in case of death.
4. Specific rules governing number of cattle returned. 5. Partial
recompense. 6. Recompense in case of divorce .. .. .. 42

V. LEGAL IMPLICATION OF THE BRIDEWEALTH
TRANSFER .. ........ ... 57
A. THE BRIDEWEALTH PRINCIPLE IN FAMILY LAW. i. Bride-
wealth and man's status. 2. Bridewealth and woman's status.
3. Bridewealth and child's status ............ 57 '
B. THE BRIDEWEALTH PRINCIPLE IN THE LAW OF INHERITANCE.
I. Allotment between houses. 2. Divisions within the house. 6k













PREFACE


The following paper is based on material collected in 1946-7 among the Gusii
(Kisii) people of South Kavirondo District, Kenya Colony, during my first
fieldwork tour as sociologist to the Kenya Government. While still in the field
I was asked by the Secretariat to provide some information on bridewealth:
this was the origin of the present study, and to some extent explains its form
also. My first aim was the limited one of setting out the rules applicable
to the decision of bridewealth 'cases'-that is, the aspect of bridewealth with
which the administrative officer in this field normally has most to do. I have not
attempted to discuss the subject of bridewealth in the round, nor to cover the many
aspects that must concern the administrator attempting to formulate a 'bridewealth
policy': for instance, the place of bridewealth in traditional marriage, law, and
social structure; the effects upon it of contact with European culture; or the way
it functions to-day, in terms of concrete social phenomena. It is my intention
to publish in due course some of my material relating to these wider topics: the
present paper may be regarded as an instalment of a more comprehensive study.
I should like to record my especial gratitude to Dr. Audrey Richards and
Professor E. E. Evans-Pritchard, both of whom found time during a busy term
to read through the MS. and make valuable suggestions for its improvement;
also to the Government of Kenya, particularly to Mr. H. E. Lambert, for permis-
sion to publish; and to all those in the field-members 'of the District staff and
missionaries as well as innumerable Gusii friends and informants-through
whose co-operation the gathering of my material was made easier.

PHILIP MAYER
London,
July 1948


The appearance of this paper has been delayed for two years by production diffi-
culties. The constant urge to reformulate, which made itself felt when I read
through the proofs after this interval, was countered only by the reflection that
the paper's aim is limited, and that its factual material has been thoroughly
checked during another ten months of fieldwork.
I may add that some more of my material having a bearing on the present
subject has been published elsewhere in the meantime ('Privileged Obstruction
of Marriage Rites among the. Gusii', Africa, April 1950), and that a fuller
account of Gusii marriage is in preparation.


PHILIP MAYER


July 1950












INTRODUCTION


T HE Gusii are a Bantu-speaking people, numbering something like
z38,ooo and apparently on the increase,2 whose present-day homeland is
a mountain region to the south of the Kavirondo Gulf in Kenya. They are
cultivators and pastoralists, aided in both capacities by a favourable climate
and an ample supply of water. The routine work of agriculture falls mainly to
women: stock-keeping is the man's traditional province. It is cultivation
that furnishes Gusii with their staple diet, a 'porridge' for which two kinds of
grain have to be grown. The special importance of cattle to the Gusii, as
to other East African peoples, has less to do with their direct economic useful-
ness (considerable though this is) than with their ritual and social significance.
One of the social uses to which the Gusii put cattle-namely giving them in
bridewealth-is the subject of this study.
A considerable fund of knowledge about the attributes of cattle and their
needs in health and sickness is common to the whole class of Gusii elders,
whose attachment to their beasts often appears to be deep and emotional. To
the younger generation the significance of cattle is not quite the same.
Men under about forty will not have spent their bachelor days, as their
seniors did, living among cattle in a special cattle-village (egesarate, pl.
ebisarate), for these were put down by Government in the 192o's. Boys
who would otherwise have been expected to tend the herds in the pastures
may now spend much of their time at school instead. The teaching of missions
and schools, though as yet affecting only a minority, has done something to
undermine the ritual significance of cattle. The progress of a money economy,
accelerated by the expansion of markets during the recent war, has
diminished the former pre-eminence of cattle as a form of investment and
a medium of exchange.
Any resultant weakening in the prestige of cattle is however of minor
importance compared with the strength of the hold they still have. Young
men as well as old acquire cattle greedily and part with them reluctantly,
and the size of a man's herd is still one of the best indices to his social standing.
Such is likely to be the case as long as cattle remain the only generally recog-
nized road to marriage. However the attitude towards cattle may have
altered in other respects, their use as bridewealth goes practically unchallenged.
Even the possibility of challenge is not imagined by any but a tiny minority,

1 Europeans in Kenya commonly use the form 'Kisii'. While preferring the more 'correct'
rendering of the name, I have avoided the vernacularforms Omogusii,Abagusii, Ekegusii, etc.,
which I translate 'a Gusii', 'the Gusii people', 'Gusii language', etc.
SThe 1948 census gave a figure of 237,500, as against 181,910 (almost certainly an under-
estimate) for 1947.







2 GUSII BRIDEWEALTH LAW AND CUSTOM

principally of young men who have travelled outside the Reserve during
army service.
The inviolateness of the practice of giving cattle in bridewealth is one index
of the relative 'backwardness' of the Gusii, compared with other settled
peoples in Kenya. It is now some forty years since British Administration
was first established in Gusii country (1907). Two punitive expeditions (1907
and 1916) served to break resistance, and administration since then has gone
on smoothly enough with a notable expansion of services since the beginning
of the 1930's. But Gusii country is comparatively remote alike from the
railway and from the mainthighways of the Colony; the town of Kisumu is
some seventy miles away by land, the main connection being by boat across
the Kavirondo Gulf; there is no white settlement on Gusii land; and the
Missions (of which the chief are Roman Catholic and Seventh-Day Adventist)
have found the Gusii field heavy going.
Gusii culture as it stands to-day bears the marks not of one but of two main
foreign influences. Before the white man's influence made itself felt, there
had already existed for some generations that of the non-Bantu peoples among
whom the Gusii form a Bantu island. Relations with two of these peoples,
Masai and Kipsigis, were predominantly negative; but in the third case-
that of the Luo-there has been intercourse of a kind that has left distinct
marks on the culture of a large section of the Gusii people. In dealing with
bridewealth, as with any other department of Gusii tradition, we shall have
to take into account the differences between two main branches of the culture :
(a) the orthodox practice of the highland Gusii-the Getutu, Nyaribari
and Mugirango tribes; these inhabit what seem to be the oldest areas of
stable settlement, in the direction of Kipsigis and Masai country;
(b) the less orthodox practice of the lowlanders. Here two groups
should be distinguished. The southern Mugirango and Nchari tribes
are those most under the influence of their Luo neighbours, with whom
they used not only to fight but also to trade regularly, and even-thbugh
this is not readily admitted-sometimes to intermarry. The Bassi and
Machoge tribes, on the other hand, are mostly pioneers in a recently
settled area, with a weak cultural background.
Gusii themselves recognize this main line of cultural differentiation, which
they relate to a broad geographical distinction. The people of Masaba,
'up east', they say, are those who always know most about the genuine
Gusii customs: at the same time they are simpletons (amaguono) who have
learnt little of the new European ways. In most cases where people of
Chache, 'down west',* have different customs of their own, they themselves
will admit that these are not the 'real' Gusii customs.








GUSII BRIDEWEALTH LAW AND CUSTOM


POLITICAL AND JUDICIAL ORGANIZATION

Traditional Gusii society was chiefless. The internal organization of society
depended far less on the presence of authorities than on the integrative
effect of lineage bonds1. A hierarchy of lineage groups ranged from the national
unit itself down to the nuclear lineage consisting of one man with his
legitimate sons. Lineages of all orders resembled each other not only in
their mode of recruitment agnaticc descent) and of definition (reference
to an eponymous ancestor), but also in being repositories of corporate
rights, capable on occasion of corporate action. Near to the top of the
lineage hierarchy is the exogamous clan (eamate, pl. chiamate). In traditional
society this was the most closely integrated political unit; however, like
all other kinds of Gusii lineage, it was without any regular head or leader.
Generally speaking there are no offices or functions associated with special
positions in the genealogical tree.
Under British rule the place of chief administrative unit has been taken by
the tribe-the lineage group that ranks above the clan and below the national
unit. At present seven tribal locations are recognized, each under its Govern-
ment-appointed chief. The chiefs are assisted by headmen, similarly appointed,
each of whom has charge of one or more clans.
Among the powers originally conferred on chiefs was that of enforcement
of legal decisions, which represented an innovation in Gusii society. The
traditional judicial system had comprised arbitration at the kinship level by
elders of the family (abagaka banka, and the wider arbitration of judicial
specialists (etureti elders) whose sphere extended over a neighbourhood group.
Enforcement was generally left to the self-help of the successful litigant,
sanctioned by public opinion which the arbitrator's verdict had served to
enlist. Later in the era of British administration the judicial powers of
chiefs were restricted, and a system of Native Tribunals, with appeal to
European officers, was set up. More recently still, a revival of the arbitration of
etureti elders has been officially encouraged and has rapidly caught on. Both
Tribunals and etureti elders have their hands full. Gusii are exceptionally
litigious, as many an official report bears witness : at present the rate of tribunal
cases per head of population is among the highest in the Colony.2'Though land
cases are increasing, and claims for money damages sometimes occur, about
three-quarters of the civil cases brought to the Tribunals still relate to live-
stock. Many of these are concerned directly (and some others indirectly)
with the law of bridewealth.




1 Cf. my paper, The Lineage Principle in Gusii Society, 1950 (Memorandum XXIV of
the International African Institute).
2 Cf. A. PHILLIPS, Report on Native Tribunals, 1945, pars. 112-13.







4 GUSII BRIDEWEALTH LAW AND CUSTOM


BRIDEWEALTH AND THE FAMILY

Among the Gusii the nuclear family can be legitimately established only
by payment of bridewealth. To discuss the implications of a bridewealth
transfer is also to define the status and relationships of family members.
Bridewealth law, family law and the law of inheritance may be said to form
a single complex.
Every Gusii child belongs by birth to a 'house' (enyomba, pl. chinyomba),
consisting of full-siblings with their mother. Every house-and therefore
every child-belongs to an egesaku,2 a word denoting the lineage sprung from
a certain man. The enyomba, then, is a group of uterine kin, the egesaku
a group of agnates. While motherhood is in the Gusii system primarily a
biological concept, fatherhood is less a biological than a jural concept, the
tie of agnatic descent (as we shall see) being by no means equivalent to that
of physical paternity.
Egesaku and enyomba are much more than terms of family relationship:
they run right through the hierarchy of lineage groups that organizes Gusii
society from head to foot. In this wider context egesaku could be rendered as
'lineage' or agnaticc descent group', enyomba as 'segment'. Here, however,
we shall be mainly concerned with the primary forms of egesaku and enyomba
-the (father's) 'family', which is also the nuclear lineage, and (the mother's)
'house'.
Bridewealth is woven into family and inheritance law just because it
defines both the nuclear lineage and the house.3 It is bridewealth payment that
distinguishes a merely biological family-a group of little significance in Gusii
society-from a legitimate family, a group that is all-important for inherit-
ance and succession, legal and mystical allegiance, and membership of all
politically significant larger groups.
In the background behind the complex structure of Gusii bridewealth law
looms the conception of egesaku (that is, legal issue) as something of final
and absolute importance. The fear of dying without egesaku, or of retribution
if one causes another man to do so, serves as an internal sanction for the
observance of the law. The great equitable principle from which all specific
rules of Gusii bridewealth law will be found to derive is that all men ought to
have equal opportunities for founding their own ebisaku. Hence the law
specially provides for portionless younger brothers, orphans, childless
widowers, and even men who are unlucky enough to die without having
begotten children. The relevance of the ancestor cult in this connection is
obvious (legitimate sons have for instance the sole right and duty of sacrificing
to their father's spirit), though the implications cannot be gone into here.
The egalitarian tendency of Gusii bridewealth law fades out beyond a

1Or possibly by adoption, see p. 58 below.
2Egesaku is the name for one of the two doors of the traditional Gusii living-house-
the one that opens into the central cattle pen (obweri) of the paterfamilias. The plural is ebisaku
3 See Chap. V.







GUSII BRIDEWEALTH LAW AND CUSTOM


certain point. What has to be secured to every man (as far as possible) is
only the necessary minimum of one wife. Beyond this there is no possibility
of evening out differences between rich and poor. Gifts of bridewealth
stock are impossible, and loans narrowly restricted. The rich man-almost
by definition-is the polygamist, the actual or potential father of a numerous
egesaku.
As the following chapters are intended to demonstrate, Gusii bridewealth
law is far from a mere jumbling together of arbitrary rules. It constitutes what
can properly be called a legal system. The broad principles that lie behind it
and give it its unity are rarely or never formulated by Gusii themselves :
but the fact that they are nevertheless pretty generally understood will not
be doubted by anyone who has watched the native handling of briidewealth
cases, and the kind of equitable arguments which are invoked quite as
frequently as the letter of this or that law. Uniformity on points of detail
is riot complete even to-day, when administrative and judicial centralization
have proceeded farther than ever before in Gusii history. Different elders
may still give different rulings on particular cases. The level at vhich we
must look for consistency is not that of detail but that of principle. Here it is
absolute, for the principles that govern the bridewealth law are deeply rooted
in the social structure. Accordingly the law is adaptable and dynamic rather
than static or uniform. The reminiscences of elders confirm that, before
as well as after the coming of Europeans, particular rules were constantly
being modified in response to changing conditions.1 Cattle-plagues, migrations
and population trends-to name only the more obvious factors-helped to
shape a continuing development of which the details must now be beyond
the reachof investigation. It should be clear that we cannot expect to construct
a rigid paradigm of the 'original' Gusii bridewealth system which shall be
correct in all details for every period and place.
In the fact that Gusii bridewealth law is a system there seems to me to lie
one justification for isolating it as a subject of study. Anotherjustification is its
uniqueness in Gusii culture'as a repository of what the European would call
rational or scientific thought. Gusii bridewealth law-or perhaps we should
say cattle law, of which the bridewealth department is by far the greatest-
constitutes a remarkably secular system. Elders call it the law of 'debt'
(esira). Its infringement injures human beings rather than spirits; its rights
and wrongs are argued out, not magically revealed; restoring equilibrium
involves no sacrifice or ritual, but is achieved by satisfying the creditor for
his 'debt'. Bridewealth has admittedly its religious and magical associations
at certain levels: indeed the conceptions of jural descent and lineage alleg-
iance, with which it is so intimately bound up, might well be called mystical.
But the non-rational elements in its day-to-day practice are slight and merely
peripheral. Little will need to be said in this paper of ritual or magical
procedures. The magico-religious side of marriage, culminating in the
massive enyangi ceremony, falls mainly outside our subject.

1 Cf. for example, the rules about the counting of calves and about the heifer of egesango
(p. 16 and p. 35).















CHAPTER I


CUSTOMARY PROCEDURE

OF THE BRIDEWEALTH TRANSFER


A. THE TRANSFER OF OWNERSHIP

I. The opening of negotiations
THE cattle transfer which legitimizes the union of a man and a woman is
in Gusii custom conducted by the fathers of the two parties. If the father
is dead his place will be taken by another relative, e.g. elder brother or
paternal uncle. In the following account I speak of the 'father' merely, for
the sake of brevity.
Only in very exceptional circumstances would a bridegroom conduct in
his own person the bridewealth negotiations on which his marriage depends,
unless he is himself an elder and head of a homestead.
Bridewealth negotiations are set on foot only after reports satisfactory to
both parties have been given by the 'go-between' (esigani, pl. chisigani or
abasigani; omokobi, pl. abakobi), and then only after these have been confirmed
by the personal impressions of the couple. The go-between, who may be of
either sex, is usually someone of the kindred of the prospective bride-
groom, and charged by the latter (or his father) with finding a suitable bride
from among those families outside the clan connected with him by ties of
friendship or kinship. The rules of exogamy exclude all women who are
(a) of the suitor's own clan, (b) known blood-relatives of his mother, (c) known
blood-relatives of either of his grandmothers.
The first task of the go-between is to 'report to both sides' (ogosigana).
He begins if necessary by discreet enquiries about the girl he has in mind,
and then calls on her family to broach the subject of the proposed marriage.
The girl's father will naturally want an assurance in general terms that the
suitor is in a position to pay bridewealth, but there will as yet be no more
specific discussion of the cattle transfer.
If these first approaches are favourably received, the go-between is asked
to tell the suitor to pay a visit in person so that the young couple can form
a personal impression of each other; and if the suitor on his part approves
the first reports of the girl and her family, he accepts the invitation, going
some days later with a few of his friends 'to see the girl' (okorora omoiseke).















CHAPTER I


CUSTOMARY PROCEDURE

OF THE BRIDEWEALTH TRANSFER


A. THE TRANSFER OF OWNERSHIP

I. The opening of negotiations
THE cattle transfer which legitimizes the union of a man and a woman is
in Gusii custom conducted by the fathers of the two parties. If the father
is dead his place will be taken by another relative, e.g. elder brother or
paternal uncle. In the following account I speak of the 'father' merely, for
the sake of brevity.
Only in very exceptional circumstances would a bridegroom conduct in
his own person the bridewealth negotiations on which his marriage depends,
unless he is himself an elder and head of a homestead.
Bridewealth negotiations are set on foot only after reports satisfactory to
both parties have been given by the 'go-between' (esigani, pl. chisigani or
abasigani; omokobi, pl. abakobi), and then only after these have been confirmed
by the personal impressions of the couple. The go-between, who may be of
either sex, is usually someone of the kindred of the prospective bride-
groom, and charged by the latter (or his father) with finding a suitable bride
from among those families outside the clan connected with him by ties of
friendship or kinship. The rules of exogamy exclude all women who are
(a) of the suitor's own clan, (b) known blood-relatives of his mother, (c) known
blood-relatives of either of his grandmothers.
The first task of the go-between is to 'report to both sides' (ogosigana).
He begins if necessary by discreet enquiries about the girl he has in mind,
and then calls on her family to broach the subject of the proposed marriage.
The girl's father will naturally want an assurance in general terms that the
suitor is in a position to pay bridewealth, but there will as yet be no more
specific discussion of the cattle transfer.
If these first approaches are favourably received, the go-between is asked
to tell the suitor to pay a visit in person so that the young couple can form
a personal impression of each other; and if the suitor on his part approves
the first reports of the girl and her family, he accepts the invitation, going
some days later with a few of his friends 'to see the girl' (okorora omoiseke).








GUSII BRIDEWEALTH LAW AND CUSTOM


2. Okomana: the selection of cattle
If all goes well, the young man asks his father to arrange for the marriage
to be effected. The father'introduces himself at the girl's home and askt
her father to come over on a certain day to look at the cattle. This visit,
which is known as okomana chiombe, 'the opening out (i.e. scrutiny, selection)
of the cattle', will constitute the first important step in the bridewealth
-transfer.
On the morning of the day named, the father of the girl arrives at the
suitor's village with six or seven other elders of his family. The suitor's
father, who has already made up his mind which animals to offer, now orders
them to be led in from pen or pasture, two or three at a time, for investiga-
tion by the visitors. As each beast arrives it will be critically examined by
the visiting elders, who question the father searchingly as to its various
characteristics-its age, the number of times it has calved, and so on. The
animals which meet with approval are led to one side, while any regarded
as too thin or too old are rejected and the father is asked to bring others in
their stead.
Even a 'modern' young man who has bought his marriage-cattle entirely
through his own effort (e.g. with his earnings or Army pay) will not try to
conduct his own cattle-view. He will of course make up his mind which
animals he wants to offer, but will let the actual negotiations be carried on
by some older relative whom he has primed beforehand. It is simply not
done for a young man to argue about bridewealth; only an elder who is
marrying a junior wife could conduct the negotiations.in his own person.
In what is still the more usual case, the traditional marriage in which the
bridewealth has been assembled wholly or mainly by the father, the bride-
groom may even not be present at all when the cattle-view takes place ; if he
does attend, it is merely as a silent spectator.
The viewing and selection of cattle-followed by that of goats-will
continue until the number set aside for the bridewealth is satisfactory to both
parties. It is a convention typical of Gusii ways that the bride's father will
continue to demand that more cattle be brought for inspection even after
both sides are aware that the number which he intends to accept has been
passed ; and that the bridegroom's father cannot counter 'this by a refusal,
but only by the polite .fiction (equally recognized as such by both parties)
that 'we have no more cattle'.
There is no indication that a Gusii father regards the offering of stock
for bridewealth as an opportunity for ostentatious liberality. On the
contrary, both donor and recipient approach okomana in a business-like
spirit of hard bargaining.


3. Legal significance of the cattle-view (okomana)
A beast which has been offered and accepted at cattle-view thereby passes
at once into the ownership of the receiving party. No matter where the








8 GUSII BRIDEWEALTII LAW AND CUSTOM

bridewealth is actually kept-and it will not all be physically handed over for
some time-the new owner's rights have begun to operate, and any of the
elders who witnessed the selection will be ready to testify to them. The
responsibility of replacing animals that die1 starts from the moment the cattle-
view is completed.
By accepting the animals offered at the view the bride's father declares
his final satisfaction. He cannot afterwards ask for more. If not satisfied
with the offered bridewealth he should rejectthe proposal of marriage outright.
For in this respect the Gusii system allows no room for payment by instal-
ments.2 That is to say, although the physical possession of the bridewealth
(as we shall see) is always transferred by instalments, the legal ownership
never is. Transfer of ownership must be a single inclusive act covering the
whole bridewealth.
The completion of the transfer of actual possession of the bridewealth
does indeed have a legal significance of its own, but this is in connection
with the completion of the marriage, and has nothing to do with the ownership
of the animals.
The element of finality in the agreement is outwardly signalized by a
large-scale celebration which takes place immediately after the cattle-view.
When the negotiations are complete the visiting elders sit down to enjoy
themselves round the beer-pot which their host has had prepared for them.
The drinking may go on till midnight or longer. When everyone is suitably
drunk the host will have a goat slaughtered too. The visitors will not go
home till morning.
For the bride's father and his'party to reject the proffered match after
they had joined in this feast of meat and beer would in former days have
been considered a gross insult, resulting probably in fighting between the
groups concerned. To-day, when the risk of violent retaliation has been
considerably reduced, it is a not uncommon trick for a girl's father to delay
his arrival at the suitor's place until evening, thus forcing the hosts to let
the festivities precede the business transaction which next morning may
not result in agreement after all. One of the Gusii Locational Councils has
turned its attention to this abuse in a resolution stating that '. any people
going for okomana must go in the morning and view the cattle after arrival.
They may be invited for meat and beer only after they are satisfied. If no
agreement is reached they may be given beer only, but no meat.'3


B. THE TRANSFER OF POSSESSION

The manner and time of actually handing over the possession of the
bridewealth differ as between the conservative sub-tribes of the highland
districts on the one hand, and the heterodox sub-tribes of the lowlands on
1 See Chap. IV.
2 Except reluctantly in the case of the legitimizing of an omobasi (see p. 12).
3 Locational Advisory Council, South Mugirango. Minutes of meeting held on 22 May 1947.







GUSII BRIDEWEALTH LAW AND CUSTOM


the other.' Indeed the Gusii's most common definition of the cultural
difference between these two main groups, colloquially termed Chache and
Masaba respectively, is 'they marry differently'. The two forms of custom
must here be discussed separately. It will be seen that common to both
is the feature of not transferring actual possession of the whole bridewealth
at once, but leaving a few animals to be handed over at a later stage which
appears to mark the completion of the marriage.

i. Orthodox custom: highland areas
Among the conservative Chache sub-tribes the marriage transactions are
still conducted with a view to eventual solemnization by the magico-religious
ceremony of enyangi.
The procedure is as follows : On leaving the bridegroom's home after the
selection of cattle the bride's father must not take with him even one of the
bridewealth animals that are now legally his, but must name a day on which
the first consignment of them is to be driven over to his place, and make
clear how many he wants left behind for collection later. To insist on taking
a few beasts when leaving after the cattle-view, as fathers nowadays sometimes
do, is regarded as very poor form.
If the bride wishes, she can afterwards send a message fixing an inter-
mediate day for the feast called 'eating at the place of the in-laws' (ekeri'-
boko)-an all-night visit paid by the bridegroom and his friends to the bride
and her friends, signalized by much drinking, dancing, and festivity. This
visit is usually made two or three days before the driving over of cattle.
When the day comes for sending the cattle to the place of the in-laws
(okoira chiombe oboko), the bridegroom himself stays at home-here, as
always, abstaining from the negotiations that concern bridewealth as such-
but chooses a party of his friends to drive over the agreed first consignment
of bridewealth and fetch home his bride. On the way the party pick up
the go-between, who is regarded as essential in the capacity of witness;
for if the girl's father can prove that the cattle-view agreement has not been
fairly carried out (e.g. that inferior beasts have been substituted for some of
the selected ones) he will refuse to let his daughter go. As soon as the animals
have been handed over, to the father's satisfaction, and the young men have
been suitably entertained, the girl can be taken home. But at this stage
she is bound to make some show of resistance. She may plead for delay-
'my mother is ill', 'we have not yet had the usual feast', or any other excuse
she can think up; in any case she will pretend to hide herself when the
young men try to set out with her and will refuse to walk when they get
her on the road at last-apparently in the depths of misery, but it is taken
for granted that her reluctance is only put on.
When the bride reaches her husband's home the period of egechabero
(cf. ogochabera, to decorate) is begun. During this time, usually a month or
six weeks, the couple may be said to be on honeymoon. For almost the
1 See Preface.







IO GUSII BRIDEWEALTH LAW AND CUSTOM

only time in her life (until the exemption which comes with old age) the
woman is under no obligation to work, though she may voluntarily join in
household tasks in order to impress her mother-in-law with her willingness
and industry. She is to dress in her best clothes and ornaments, eat the choicest
food, and be constantly entertained by her husband's friends. The bride-
groom is expected to kill one or more bulls and send portions of the meat
to his parents-in-law.'
At the end of egechabero she goes home to her parents for a month or so,
and if she has any strong objections to the marriage she can now put them
before her father. It is one of the recognized opportunities for breaking off
the match.2
There remains the question of the cattle which were not handed over with
the first consignment. These may number anything from one or two cows
to about half the amount of the bridewealth. The purpose of setting them
aside for later collection may be twofold :

(a) Obligatory custom. One or perhaps two animals must in any case
be 'left for enyangi', i.e. until the bride's father is ready to perform this
ceremony for his daughter. The handing over of this final instalment will
be the first stage in the enyangi proceedings.

(b) Reasons of convenience. The bride's father may also choose to leave
behind some further portion of the bridewealth, knowing that his legal title
is secure, that he can send for the animals whenever he likes, and that
meanwhile the bridegroom's father is responsible for making good any that
may die. This arrangement is often used as a device for securing the best
animals against the demands of creditors. If the bride's father knows that
creditors will pounce on him as soon as he has any cattle in the pen, he takes
the precaution of having only the worst animals sent over, so that his debts
can be met from their number.

The transfer of the animals 'left for enyangi' takes place on the occasion
known as 'discussion' (egekwano). On this day the bridegroom's father,
together with two other elders and with the go-between, visits the bride's
father in the morning for discussion and agreement as to the amount of the
outstanding claims : that is, the number of animals still not collected, and
the number that have died or been lost and must be replaced. Agreement
is signalized by the killing and joint eating of the 'bull of discussion provided
by the bride's father, which is accompanied by the drinking of much beer.
Here again the bridegroom himself takes no part: he is not even allowed
to accompany his father.
The last remaining cdw of the bridewealth, handed over at this time, is
known as the cow of enyangi. Some elders however maintain that the cow


1 See p. 17 f.
SSee p. 50 f.







GUSII BRIDEWEALTH LAW AND CUSTOM


of enyangi ought properly to be another animal, additional to the bride-
wealth, given at the same time in order to recompense the bride's parents
for all the trouble and expense of making enyangi. The bride's mother some-
times claims it as her 'cow of heat'.1


2. Custom of lowland areas
Since enyangi is little practised in the Masaba areas arrangements for
completing the transfer of the bridewealth have to differ accordingly. The
Gusii say that 'in these parts a man thinks he is properly married as soon as
he has his bride at home', whereas in the orthodox highlands "even an old
woman is not properly married unless she has her enyangi'.
In the lowland districts the first consignment of the bridewealth is taken
home directly after the selection. It is obligatory for one or two cows to be
left behind. All the rest can be driven across the same day by a party of the
bridegroom's friends (not the bridegroom himself), and the bride's father
is given them with a promise that the balance will be brought over later.
The bridegroom will then fix a day for his friends to take over the last instal-
ment and at the same time collect the bride. It is however permissible for
the bridegroom to collect his bride in person-something that would not be
tolerated in the orthodox districts. If he does so, it must be after his friends
have taken over the remaining animals : he cannot himself drive over any
part of the bridewealth.
The marriage is complete as soon as the entire bridewealth has been
handed over and the bride taken to her husband's home. The egechabero
month is however observed in the same way as in the conservative districts,
and the time which the bride spends with her parents aftewards is still regarded
as a recognized opportunity for 'divorce'.


3. Enyangi
If enyangi is to be made, the bride's parents should start preparations
for it as soon as all outstanding bridewealth claims have been settled at the
discussion.
The enyangi ceremonialis far too massive to be described in detail here,
but a brief outline must be given to make intelligible the references which
will have to be made later in the text.
Enyangi proper occupies two successive nights, which are very different
in character. On the first (which is called egetaorio) open house is kept
for young men, including many classificatory 'brothers' of bridegroom and
bride, and no unbidden guest may be turned away. After a display of
wrestling the night is spent in drinking, singing, dancing, and consum-
ing the meat of a bull, specially provided by the bridegroom. The second


1 See p. 20







12 GUSII BRIDEWEALTH LAW AND CUSTOM

night, called echorwa, is one of solemn magico-religious. ceremonial behind
closed doors, attended by perhaps a dozen guests from each family,
and presided over by a special priest and priestess.
Three days after echorwa-or two days if the husband was already married
-a white he-goat is sacrificed at the home of the couple. Next morning
the bride takes one of the traditional 'enyangi names' by which she will be
known for the rest of her life. Her iron ankle-rings (ebitinge) are put on,
signifying that she has now obtained the full status of a married woman, and
is bound to her husband both by legal and by magico-religious sanctions.


C. IRREGULAR MARRIAGES
The account given so far is of a properly conducted Gusii marriage. But
the sequence is upset, and the relative influence of the parties thrown out of
balance, if the young couple take matters into their own hands by living
together without waiting for the proper formalities.
A girl who agrees to live with a man who has not paid bridewealth for her
is derogatorily termed 'a chooser' (omobasi, cf. okobasa, to choose for
oneself). Even according to the laxer standards of to-day she is doing some-
thing reprehensible. It is evidently not her entering into unlegitimized
sexual relations that constitutes the serious fault; a girl's behaviour is often
condoned if it involves no more than that-for example if she receives
lovers at her own home. The grave breach of duty is to rob father and
brothers of her custody, putting her own group at a great disadvantage when
the bridewealth negotiations are at length set on foot.
If a father finds himself unable to regain custody of a daughter who either
eludes recapture or keeps running back to her lover, he has no practicable
alternative but to start negotiations for the legitimizing of the union. If the
young man is able to pay the normal amount of bridewealth the affair may
be said to do no harm to anybody. But if, as more often happens, he has few
cattle or none at all, the father becomes the victim of a dilemma. The accept-
ance of (say) one or two animals at the cattle-view would look like full
consent to the marriage on these terms. As already mentioned, the normal
response of a father who is not satisfied with the amount of the bridewealth
offered at the view is to break off the match entirely. A father whose daughter
insists on remaining with her lover cannot in fact break off the match. But
neither can he, in the interests of himself and his sons, be satisfied with receiv-
ing a mere fraction of the proper bridewealth.
In these circumstances a father may waive some part of his claims, and
accept perhaps two-thirds of the normal bridewealth. The young man's
brothers often do their best to help him with loans of cattle, even if it is not
really his turn to marry. 'This girl who has come to us is a good girl, and
it wbuld be a pity if her children were lost to our egesaku (lineage) for lack
of cattle.' But if not even a reasonable portion of the bridewealth can be
got together the father may resort to the unsatisfactory device of a public







GUSII BRIDEWEALTH LAW AND CUSTOM


promise. He declares before all the witnesses that, contrary to appear-
ances, his present acceptance of so-and-so many cows does not imply final
consent to the marriage: he will not be satisfied without so many more.
The young man's father, or whoever is acting for him, must then publicly
undertake to pay the balance as soon as possible. It must be noted that
such a promise would not seem valid to a Gusii if it were made in merely
general terms. Not only must the promised cattle be a specified number,
but the source from which they are to come must also be specified. Thus a
man often pledges in advance part or all of the bridewealth of an unmarried
daughter, or the cattle that he expects to receive in settlement of some debt.
It is not uncommon for an impecunious lover to resort to pledging the
bridewealth of a daughter still unborn. That a whole generation must elapse
before the promise can be fulfilled gives him little hope of evasion : there
is not the slightest likelihood that the creditor family will 'forget'.
A specific mortgage-the only promise that can be considered a reason-
able substitute for the legal transfer of real cattle that ought properly to take
place at the cattle-view-does at least give the claimant a hold over identifiable
cattle, even though the attainment of possession will be unduly delayed.
Nevertheless there is nothing more heartily detested by fathers as a class.
The man who is forced to let his daughter go for a few cattle and a promise
of more will bitterly quote the proverbial phrase 'A debt (esira) takes the
girl'; that is,. 'In return for my daughter I have got a mere promise.'



D. SIGNIFICANCE OF CUSTOMARY MODE OF BRIDEWEALTH TRANSFER

The traditional Gusii procedure of transferring bridewealth, as we have
seen, cannot properly be called payment by instalments, since legal owner-
ship of the entire bridewealth herd is decisively transferred at the initial
cattle-view. Yet at the same time it cannot be called payment in a single act
since physical possession of the herd not only may be, but must be, trans-
ferred in stages.
What happens (we may say) is that possession of the bridewealth is
exchanged in stages against rights over the girl, the stages being as follows:

Stage 1. Cattle-view agreement (okomana)
A surrenders the rights of ownership over the herd, but retains physical
possession of it. B binds himself to surrender certain rights over the girl
and her offspring, but retains physical possession of her.

Stage 2. Beginning of egechabero
A surrenders physical possession of the main part of the herd but retains
one or more animals. B surrenders physical possession of the gill, but
retains right to take her back in case of disagreement.







14 GUSII BRIDEWEALTH LAW AND CUSTOM

Stage 3. Enyangi
A surrenders physical possession of the remaining animals: the entire
herd has now been finally transferred to B. B surrenders the right to recover
custody of the girl: she has now been finally attached to the egesaku (lineage)
of A.

Thus the effect of the procedure is that, until the final enyangi, each side
at every stage retains a 'hostage'. This is a system that has to be seen in
relation to the political conditions of former times. In days when the
exogamous and the political grouping were coterminous (before British
Administration deprived the clans of their virtual sovereignity),the enforce-
ment of marriage rights was eo ipso fraught with uncertainties and risks.
The hostage was no mere formality, but a necessary security and safeguard.













CHAPTER II


THE MARRIAGE OUTLAY:

BRIDEWEALTH PROPER AND MARRIAGE GIFTS

A. THE COMPOSITION OF THE BRIDEWEATLH PROPER

T HE bridewealth proper consists nowadays of a number of cows and
Sheifers, one bull, and a number of goats (including at least one he-goat).
If both parties agree, the goats may be commuted for an extra heifer, which
has a fixed value in terms of goats according to the prevailing rate of exchange.'
The cows and goats are.called animals of substitution (nyaika) i.e. replace-
ment for the girl.
The rules concerning these animals of 'substitution' are as follows:
I. Nine cows cannot make a bridewealth, since this number is considered
magically dangerous. Any other number is possible.
z. The position of the goats in the bridewealth payment has to be specially
noted. They are definitely reckoned as an essential part of the transaction,
yet they are little esteemed in comparison with the cattle, and the rules about
their return and replacement differ accordingly. Thus the return of identical
animals has never been claimed for goats as it has for cows; in the same way,
a claimant may willingly accept a he-goat in place of a she-goat, though nobody
would agree to accept a bull instead of a cow.
This equivocal attitude towards the bridewealth goats has a historical ex-
planation. Elders maintain that before the great cattle shortage of the 1890's
the bridewealth proper consisted of cows only. Goats and bulls when
given at all were given as customary presents, or for sacrifices connected
with the marriage, and not as an integral part of the bridewealth. The
traditional practice of bartering goats for cattle at a fixed rate made the goats
the obvious substitute when cows for bridewealth were hard to come by.
Goats, then as now, could play the part of small change: various numbers
of them could be included in the bridewealth to represent various 'fractions'
of a cow at the defined rate of exchange. It may be because the practice of
including goats in the bridewealth has outlived the real raison d'etre it had
during the cattle shortage that we find certain incongruities and inconsist-
encies in connection with it.
3. The number both of cows and of goats will depend partly on individual
bargaining, but still more on the current rate or standard which at any time
prevails all over Gusii country, with only minor variations from tribe to
SAt present (December 1947) ten or twelve goats are reckoned equal to one heifer.













CHAPTER II


THE MARRIAGE OUTLAY:

BRIDEWEALTH PROPER AND MARRIAGE GIFTS

A. THE COMPOSITION OF THE BRIDEWEATLH PROPER

T HE bridewealth proper consists nowadays of a number of cows and
Sheifers, one bull, and a number of goats (including at least one he-goat).
If both parties agree, the goats may be commuted for an extra heifer, which
has a fixed value in terms of goats according to the prevailing rate of exchange.'
The cows and goats are.called animals of substitution (nyaika) i.e. replace-
ment for the girl.
The rules concerning these animals of 'substitution' are as follows:
I. Nine cows cannot make a bridewealth, since this number is considered
magically dangerous. Any other number is possible.
z. The position of the goats in the bridewealth payment has to be specially
noted. They are definitely reckoned as an essential part of the transaction,
yet they are little esteemed in comparison with the cattle, and the rules about
their return and replacement differ accordingly. Thus the return of identical
animals has never been claimed for goats as it has for cows; in the same way,
a claimant may willingly accept a he-goat in place of a she-goat, though nobody
would agree to accept a bull instead of a cow.
This equivocal attitude towards the bridewealth goats has a historical ex-
planation. Elders maintain that before the great cattle shortage of the 1890's
the bridewealth proper consisted of cows only. Goats and bulls when
given at all were given as customary presents, or for sacrifices connected
with the marriage, and not as an integral part of the bridewealth. The
traditional practice of bartering goats for cattle at a fixed rate made the goats
the obvious substitute when cows for bridewealth were hard to come by.
Goats, then as now, could play the part of small change: various numbers
of them could be included in the bridewealth to represent various 'fractions'
of a cow at the defined rate of exchange. It may be because the practice of
including goats in the bridewealth has outlived the real raison d'etre it had
during the cattle shortage that we find certain incongruities and inconsist-
encies in connection with it.
3. The number both of cows and of goats will depend partly on individual
bargaining, but still more on the current rate or standard which at any time
prevails all over Gusii country, with only minor variations from tribe to
SAt present (December 1947) ten or twelve goats are reckoned equal to one heifer.







16 GUSII BRIDEWEALTH'LAW AND CUSTOM

tribe. The Gusii themselves say simply, 'we see that all the other fathers
are asking so much for their daughters, so we also demand the same'.
Except for those occasions when conscious policy has intervened to fix the
rate, they can only explain the fluctuations in terms of what the European
might call the price mechanism that governs the price of a commodity in a
more or less perfect market. The vicissitudes of the bridewealth rate-it
has been known to number anything from one heifer or less to 20 cows or
more-as well as the various forces which seem to govern them, cannot
be fully discussed in this paper.1
4. Each animal, cow or she-goat, must be accompanied by its offspring
if the latter are still suckling. But these calves and kids are not now usually
reckoned in the amount of the dowry proper. Whereas the full-grown
animals are nyaika, 'replacement', the calves and kids-together with any
born after the transfer-are merely emebiara, 'offspring', or amabere, 'milk'.
If to-day a Gusii states that the cattle paid in bridewealth on a certain occa-
sion were 'ten', he will probably mean eleven head of full-grown cattle
(ten cows and one bull), together with perhaps three or four calves; the stated
number of goats must be interpreted similarly. The fact that the offspring
are not reckoned in the bridewealth proper means of course that their number
is less significant and less memorable, and hence the fittest subject for
haggling or evasion in the event that the bridewealth has to be returned.
The distinction between nyaika and emebiara also concerns the laws about
replacing bridewealth animals which died after transfer.2
Like the inclusion of goats in the bridewealth, the non-counting of calves
and kids seems to be a fairly recent development, though probably older than
European influence. Elders ascribe its origin to a time just before or perhaps
just after the coming of the Europeans; they say that it developed as a means
of evasion provoked by a native attempt to reduce the bridewealth rate.
Up till that time (about the first decade of the twentieth century), it is said,
all female animals had been reckoned as nyaika, but now fathers began to
demand the extra 'milk' (i.e. offspring) in order to make up for the reduction
in the number of cows without an overt breach of the law. In some of the
more remote of the conservative districts, calves are even now counted as
nyaika and not as emebiara.2
5. The bull included with the b.ridewealth, too, serves a rather equivocal
function. No bridewealth payment would be considered complete without it,
but it seems to constitute a compulsory 'gift' to the bride's father, not a part
of the nyaika herd given to 'replace' the bride herself. It is known as the
'apron bull' (eeriy'egesicho). Traditionally the bride's father would slaughter
it to make himself a new egesicho, the apron of hide that formed part of the
dress of elders in pre-contact days. In modern times, as we shall see, it
is sometimes supplemented by the gift of a greatcoat for the father to wear.

1 More material on the bridewealth rate is included in a paper on 'Bridewealth Limita-
tion among the Gusii' which I hope to publish (in Two Studies in Applied Anthropology
in Kenya).
2 See chap. IV.







GUSII BRIDEWEALTH LAW AND CUSTOM


B. THE CUSTOMARY GIFTS, SACRIFICES AND ENTERTAINMENTS

The outlay of livestock and other forms of wealth in connection with a
marriage considerably exceeds the amount of the bridewealth proper, for
in addition to this primary legal obligation there exists a no less binding
social obligation as t9 entertainment and the exchange of gifts. Each occasion
for presenting a gift or killing a beast is well-defined in regard to donor,
recipient, nature of gift and time of giving.
Although only the wealthiest and most lavish can afford to run the whole
gamut of the specified marriage gifts and entertainments, other people do not
simply omit items, but use a convenient device of telescoping. When several
gifts are due to the same recipient, one may be made to do duty for two:
thus the donor of a bull of omoyega (p. 18) explains that it also represents
his bull of amaikanse (p. 18) and so forth. Because of this telescoping, the
following list of customary gifts and entertainments is not to be taken as
representing the actual outlay in connection with a typical marriage.
The more detailed analysis of these gifts belongs with the study of kinship
relations, but there are reasons for mentioning them in a study of bride-
wealth. They must for instance be considered together with the bridewealth
from the economic point of view, when we have in mind such questions
as the effect of a marriage on the family's livestock resources. Further-
more, in fulfilling their function of establishing and maintaining friendly
kinship relations, these gifts and entertainments have an important bearing
on the bridewealth transaction itself. Friendly relations between the in-laws
have traditionally been the best guarantee of continued fulfilment of
Bridewealth obligations. Without them the realization of one's legal claims
was no easy matter, since the in-laws by definition belonged to another
clan-a politically distinct and potentially hostile group. The Gusii themselves
still say (for instance) that unless a mother sends the proper food gifts
to her married daughter, 'father will not easily get cows replaced when
they die'. Viewed in this light the institution of reciprocal gifts may be called
an outer line of defence for the bridewealth system whose proper functioning
it helps to secure.
The following list brings together, for the sake of convenience, many
diverse elements in the customary marriage outlay, ranging from the obligatory
provision of beasts for essential sacrifices to the optional presentation of
personal gifts. All are however associated with one of two stages in the
marriage proceedings : either with the egechabero ('honeymoon') period
which follows the initial transfer of possession of the main bridewealth, or
with the enyangi celebration, which follows the final transfer of the remainder.
We shall list them under these two main headings and indicate the broad
distinction of purpose to which this classification seems to correspond.







18 GUSII BRIDEWEALTH LAW AND CUSTOM

i. Egechabero cycle
(a) Apron bull (see p. 16). This bull, which will be received with the first
main instalment of bridewealth, may subsequently be used by the
bride's father for the feasting of the bridegroom's father at 'discussion'
(see No. 2. (a) below); otherwise, whenever he does slaughter it, he
should return one hindquarter to the bridegroom.

(b) Hen of dew. The bridegroom rewards the young Aen who bring home
his bride for egechabero by killing for them a number of hens-the first
of these being the 'hen of dew' (engoko ye'rime),-or a he-goat if.he can
afford it.

(c) Bull of omoyega. During egechabero the bridegroom must slaughter
a bull and send the best part of the meat to the bride's parents. He keeps
for himself and his friends only one foreleg and the breast,-the traditional
portion of young men of warrior age. Four such young men are chosen
to carry over to the bride's home the three remaining legs, the head, the
skin, intestines and kidneys.

(d) Goat of laughter. Traditionally a party of the bride's girl friends would
visit her at the bridegroom's cattle-village' during egechabero, each
bringing a present of beer. On the evening of their arrival (the visit was
an overnight one) the bridegroom would slaughter for them the 'goat of
laughter' (embori ye maseko) or 'sharpening the teeth' (egeticha maino.

(e) Bull of amaikanse. On the next day he might slaughter for them the
'bull of amaikanse; its two hind-legs and its hide would be sent to his
bride's mother. J
Both these customs became obsolete in the 1920's with the suppression
of the semi-permanent cattle-villages in which young bachelors formerly
used to spend their days away from the supervision of their elders.
Neither of the two was strictly obligatory, but they provided a young
man with a welcomed opportunity of showing off to please his bride.
Fathers complained of their sons' irresponsible manner of wasting
animals in this way, and the practice died a natural death with the
enforced return of the young men to their home villages.

(f) Exchange of foodstuffs and grain. From time to time during egechabero,
the bride's mother must send the young couple a basket of the staple
porridge (obokima), together with a large calabash of soured milk-one
of the most highly esteemed forms of 'relish'. These gifts, which
should be sent at least three times during the period, are carried over
by young women of the bride's native place, since the customs of avoidance
preclude a mother from visiting her daughter in person during the
1 See Introduction, p. 1.







GUSII BRIDEWEALTH LAW AND CUSTOM


first year or so of the latter's married life. Each time the basket of
porridge is received and emptied, it must be filled up with finely-threshed
grain (oborabu) as a return gift to the mother. A little of the milk must
also be returned in the calabash in which it came; 'if all the milk were
taken the parents would say the young ones were wishing poverty on
them' (obotaka bagotoretera).

(g) Personal gifts to the bride. During egechabero a man is'expected to make
gifts to his bride. Nowadays the usual form of gift is a few shillings or
a necklace. Among the southern Bagirango (location of South Mugi-
rango) and the neighboring Makora clan of the AbaNchari (Wanjare
location)1 it has become common practice to give the bride a more
considerable sum of money, sixty or seventy shillings being not unusual.
The provision of new clothes for the bride is a disputed point. Tradi-
tionally the wife's new skin apron had to be provided by her husband
(see below No. 2. (f)). Girls nowadays pester their bridegrooms to buy
them new cotton dresses; in case of Christian marriage the husband may
also have to provide a long white wedding-dress. The bridegrooms,
supported in some cases by the missionaries, often contend, however, that
the duty of providing the wedding-dress and other clothes rests with
the girl's parents.

(h) Bull of egekobo. At the end of the egechabero month the bride returns to
her parents' home with a party of young men from the bridegroom's
place. Her parents must then entertain the young men all night and
kill for them the bull of egekobo. This is said to be reciprocal to the
omoyega bull (No. i. (c) above).


2. Enyangi cycle
The following are to be provided by the bride's family:

(a) Bull of discussion. The discussion and final agreement about outstanding
bridewealth claims, which has to take place before enyangi is held,
is marked by the killing and joint eating of a bull, provided by the
bride's father. The 'apron bull' (No. i. (a) above) is often used for this
purpose.

(b) Goat of enyangi. A central feature of the enyangi ritual is the sacrifice,
on the second night, of the goat of enyangi; this is a she-goat provided
by the bride's father.

(c) Enyangi celebrations. The enyangiceremony itself is a recognized occasion
for display of wealth and hospitality by the family of the bride. Gusii say,
SThese are among the most Luo-like of the 'Masaba' Gusii.







20 GUSII BRIDEWEALTH LAW AND CUSTOM

'When we make enyangi for our daughter we don't want a small poor
enyangi, we want a great one that people will talk about for a long time
afterwards.' Thus they find it natural to explain the delaying of enyangi
in individual cases by saying that the bride's parents have not yet been
able to save up enough grain.
The provision for which the bride's family are primarily responsible
is the supply of beer arid staple porridge for the two nights' entertain-
ment, the meat being provided by the bridegroom (see bull of egetaorio
below, No. 2. (e)). The scale of the enyangi celebrations may be gauged
from the fact that thirty pots of beer is thought a reasonable provision
for such an occasion, while for an ordinary sociable beer-drink four
to six pots is an adequate amount. Apart from this quantity, which the
bride's mother has to brew, assisted by other women of the homestead and
by the bride herself, some extra supplies may be counted on in the form
of 'helps' (ebitoro), brought along to the celebration by the wives of near
paternal kin.

The following are to be provided by the bridegroom's family:
(d) Bull for ritual garments. Before enyangi the bridegroom must provide
a bull from whose hide a special functionary will make his enyangi head
dress and jacket-the ekiore and esumati; these garments are obligatory
for enyangi.

(e) Bull of egetaorio. The bridegroom has to brig with' him the bull which
is slaughtered on the first night of enyangi (egetaorio), some parts being
divided ceremonially among the important guests, and the remainder
eaten up by the crowd of visitors who attend on such occasions.

(f) White goat for sacrifice. The bridegroom has to provide a white he-goat
to be sacrificed at his place three days after the ceremony. The sacrifice
is connected with sanctions against adultery. Traditionally the skin of
this goat must be made into the long apron of skin which the wife will
now wear in place of the short apron affected by young girls. The left
hindleg, stomach and small intestine must be taken by the bride to her
parents, the ekebirichi piece (consisting of tail and three lowest ribs)
must be given to the enyangi 'witness' or 'best man' (omong'wansi).

(g) Goat or cow of heat. The mother of the bride is entitled to one animal
'of heat' (ye riberera), either a goat or a heifer, ostensibly to recompense
her for the heat and exertion of the enyangi nights when she sat up over
her fire boiling water for the guests' beer. If this claim is not met out of
the bridewealth itself it can be made against the bridegroom.

(h) Goat of the sister. The eldest sister of the bride is entitled to claim one
goat from the bridegroom at the time of enyangi. She cannot get it
'for nothing', but has to 'deserve' it by bringing a gift of two pots of beer.







GUSII BRIDEWEALTH LAW AND CUSTOM


Thenceforward she must keep up a polite sequence of visits and gifts,
otherwise the goat may be reclaimed from her by force.
Some elders say that the gift of a goat to the bride's eldest sister is,
like the animal'of heat', a recompense for helping in the enyangi celebra-
tions, but it is usually said to be given'for love' or 'because she was like
a mother to the bride'.

(i) Goat of the grandmother. The maternal grandmother of the bride is
entitled to claim one goat from the bridegroom at the time of enyangi.
If she is dead, her son (the bride's mame, maternal uncle) has a
rather doubtful claim.
In those lowland districts where enyangi is not necessarily included
in the marriage proceedings, the gifts of goats to the bride's grandmother
and sister are made at the time of completing the bridewealth payment
and fetching away the bride. It is in these districts, too, that the 'modern'
gifts of greatcoats, blankets, and so forth have come into vogue. These
have no counterpart in the orthodox districts.'

(j) Modern forms of gift. The following practices seem to be almost confined
to the tribe of southern Bagirango (South Mugirango location) and the
neighboring Makora clan of the Nchari tribe.
(i) Greatcoat. The-'bride's father may demand a greatcoat from his
son-in-law; if the two men agree, the gift may take the alternative
form of money for the father-in-law to buy himself a coat (4os.
upwards).
(ii) Labour. When the young men come to fetch the bride her father
may demand that they stay for a few hours to help with men's
work that has to be done on his land, e.g. clearing bush or pulling
up thatching-grass. This is definitely an innovation of the past
decade or two.
(iii) Blankets and cooking-pot. The bride's mother may demand a
blanket and one or more cooking-pots, and if these are not provided
the equivalent in money should be given instead.


1 A fuller account and analysis of the enyangigifts can be found in my paper on 'Privileged
Obstruction of Marriage Rites among the Gusii', Africa, April 1950.







22 GUSII BRIDEWEALTH LAW AND CUSTOM


C. FUNCTIONS OF CUSTOMARY GIFTS AND ENTERTAINMENTS

The practice of presenting gifts and killing animals during egechabero must
be viewed in connection with the probationary nature of the egechabero period,
which follows the initial transfer of bridewealth and precedes the final tying
of the knot by enyangi. We have seen that at the conclusion of egechabero
the bride would be entitled to ask her father to break off the match, or the
bridegroom to demand his cattle back, if reasonable objection could be stated.
Generally speaking, it is clear that the most likely source of threats to the
stability of the marriage at this stage will not lie in the sphere of cattle
claims : for these have been brought to a temporary equilibrium (at the
cattle-view) and not yet reopened for final settlement (at the 'discussion').
Indeed, if such equilibrium had not been reached, the bride's father would
not have allowed her to begin the egechabero at all. The specific need of the
egechabero period, therefore, lies in another field: it is the need to provide against
failure in the twofold human relationships on which the success of the
marriage will depend-that between husband and wife, and that between
their respective family groups. In this twofold process the gifts and the
killings of beasts play a distinctive part. While the husband seeks to win
the bride's favour by presents of clothes and money to herself, and by
hospitable entertainment of her friends, the prospective in-laws (abako)
are paving the way for friendly relations by reciprocal exchanges of gifts
and courtesies. In one of these-the exchange of porridge and milk against
grain-the wife's family take the initiative ; in the other the initiative comes
from the bridegroom, who sends his parents-in-law the meat of the omoyega
and amaikanse bulls, in return for which they will entertain him and his
companions with the bull of egekobo. That the initiative should be divided in
this particular way is symbolically appropriate: grain and cooked food
belong to the woman's sphere of life, cattle and meat to the man's.
The marriage gifts (as distinct from slaughterings for entertainment) are
not directly reciprocal. They are said to be for love; a personal due from
donor to recipient in virtue of the kinship or other relationship in which the
parties stand, without consideration of past or future return. However,
the bestowal of gifts and courtesies 'for love' has itself a reciprocal element
as acknowledgement for past favours, or solicitation of future favours; and
the custom is quite consciously explained in these terms by the people
themselves. The gift of the grandmother's goat for instance, is explained as
a return for past favours: 'the old woman was kind to her granddaughter
when she visited her as a child'. The hope of more favours to come is involved
for instance, in the gift to the bride's sister-if the expected visits (each
with its gift) do not ensue, the goat can be recovered; at the same time, the
gift acknowledges the sister's help given at the time of enyangi.
The slaughterings of animals, on the other hand, are connected in terms







GUSII BRIDEWEALTH LAW AND CUSTOM


of direct reciprocity, so that a Gusii, when asked why the bride's father has to
provide the 'bull of discussion', finds it natural to reply 'because the bride-
groom's family have already slaughtered bulls for him during egechabero'.
But if reciprocal giving is one keynote, joint enjoyment is another. It will
be seen that with a single minor exception ('hen of dew') all the meat killed
for enjoyment (as distinct from animals slaughtered for ritual purposes)
has to be shared by people of both sides, i.e. by kinsfolk or friends of both
bride and bridegroom. Either a joint feast is held, or parts of the meat are
sent over to the absent party. In at least one instance, that of the bull of
discussion, Gusii themselves will explain that the joint eating of the beast
signalizes mutual agreement. Apart from such symbolic meanings there was
a practical significance. Whenever a man entertained the girl friends of his
wife among the young warriors of his own cattle-village or homestead, or
when her parents in return entertained his friends with the bull of egekobo,
young people of what might be hostile clans were being brought together
in common festivity, not only as present comrades but also as potential
spouses-for wedding festivities are traditionally the great opportunities for
young Gusii people to strike up acquaintances leading to marriage. To
appreciate the full significance of these joint celebrations we have to re-
member that the abamura who meet there are some of the Very warriors who
would do the actual fighting in case of hostilities between their respective
clans.
Though elders are ready enough to recognize enyangi as an occasion for
display, they have never fully accepted the similar construction placed on
egechabero by the young men.We have mentioned that before the suppression
by Government of the cattle-villages in the 1920's the provision of entertain-
ments and gifts during egechabero was a constant bone of contention between
fathers and sons. Fathers complained that during egechabero merrymakings
their sons would recklessly slaughter one after another of the family livestock
which they were supposed to be tending. This conflict assumed considerable
proportions in Gusii eyes. Elders nowadays will often say that the reason
why they did not more strongly resist the suppression of the cattle villages
was 'the trouble we used to have with our sons slaughtering beasts there
without our approval, to entertain their girls'. The young men's tendency to
excessive display during egechabero might receive a further stimulus from
the desire to ensure a really handsome enyangi later on: generous entertain-
ment during egechabero ought to be reciprocated by equal lavishness at enyangi.
In connection with the second cycle of gifts, consisting of those associated
with enyangi, we have to recall that at this stage-in contrast to that of
egechabero-the marriage and the primary in-law relationships are firmly
established. The question is no longer one of paving the way for friendly
relations between in-laws, but of maintaining the personal bond after the
enyangi has ceremonially cut off the wife from her own lineage. Particularly
significant are the presents of goats to certain members of the wife's non-
agnatic kin-the sister and the maternal grandmother or her son-since
these extend the network of give-and-take across the bounds of two iore







24 GUSII BRIDEWEALTH LAW AND CUSTOM

clans, and thus cover a wider field than does the distribution of the bride-
wealth itself.
The rules for return of customary gifts in case of divorce illustrate their
function of maintaining friendly kinship relations. If the marriage is annulled
in the traditional way '-i.e. if the entire bridewealth is returned, and the
husband does not keep any of the children-the husband can demand back
everything he gave: the very clothes with which he provided the woman
during egechabero must be replaced by her father. (The only exceptions are
gifts to the bride's mother, such, as the cooking-pots-a man would be
'ashamed' to confront hig mother-in-law in such a cause.) If however the
wife is divorced under the new law so that part of the bridewealth is not
recovered and she leaves a child or children behind her, the gifts are not
to be returned. 'We do not demand any gifts back in that case, because we
want the woman's family to be good to her children; the grandparents should
be kind to their grand-children, and the mame (mother's brother) to his aba-
igwa (sister's children).' Putting the same idea into a slightly different form,
a Gusii will sometimes say that gifts are not returnable in such cases because
'when one keeps the children the oboko (in-law relationship) is not broken'.


1 See p. 52 et seqq. below.












CHAPTER III


ASSEMBLY AND DISTRIBUTION OF

BRIDEWEALTH


INTERRELATION OF 'ASSEMBLY' AND 'DISTRIBUTION'

B RIDEWEALTH assembly and distribution take place primarily within
the individual or joint family, by which I mean the group consisting of
husband, wife or wives, and their children. This constitutes the circle within
which normally the bridewealth used by a man is collected together and the
bridewealth received for a woman is shared out. In fact, 'assembly' and
'distribution' in the Gusii manner are, hardly more than two names for the
same process. Since the greater part of the bridewealth brought in by the
women of such a family is used in marriage by the men, the assembly and
the distribution alike consist mainly in the father's method of allocating
between his sons the cattle received from the marriages of his daughters
or earned by the labour of his wives.
Gusii custom was and is fairly summed up in the-version that the people
themselves generally give : 'A man gets cattle from his father when he
marries; a girl's cattle are received by her father.' Relatives outside the
family as just defined may be participating because rights or obligations have
passed to them by inheritance, but if we exclude these it must be said that
the.part played by the wider kin is insignificant.
We shall therefore deal first with the rules governing allotment of bride-
wealth within the family as defined above-rules which determine at the
same time the mode of assembly and that of distribution. After this we
shall discuss the remaining aspects of distribution. These may be said to
define also the remaining aspects of assembly, in so far as they are naturally
circular processes, if we look at them from the long-term point of view.
The same custom (for instance) that obliges a man to pay a heifer of emesuto
from his sister's bridewealth entitles him to receive a heifer of emesuto
(or one of its offspring) from his mother's bridewealth, and so on over the
whole range of such rights and obligations. But these circular processes
operate only-as it were-on the periphery of the marriage exchange,
dissolving away the edges of the bridewealth that is transferred in an indivi-
dual marriage, but leaving a solid core to remain in undisputed possession
of the receiving family. Hence the bridewealth really is, as the Gusii term
nyaika implies, a 'replacement' for a woman. The proportion of daughters to
sons in the individual family is generally the factor that determines plenty or
poverty in cattle.







26 GUSII BRIDEWEALTH LAW AND CU-STOM


A. RULES OF ALLOTMENT OF BRIDEWEALTH WITHIN THE FAMILY

The allotment of bridewealth within the individual family is normally
the function of the father. But the father, though he directs and co-ordinates
all matters connected with bridewealth, is not free to act at his own discre-
tion. He is bound by well-known rules, which may be broken only in very
exceptional cases-for instance, if a son behaves so that the father
punishes him by withholding what would otherwise be his due (even then, the
son is expected to be reinstated in due course as the reward of submission).
The father has free scope only in arranging for'his sons to help each other
with loans. Here his legal right of dictation may be rendered invalid in
practice by the play of personalities within the homestead.
If the father, the natural head of the family, dies too early to complete his
task of allocating the bridewealth among its members, the responsibility
for enforcing the known rules passes to his brothers or other related elders,
until the eldest son is old enough to take it over.
The father's discretionary right of enforcing loans between his sons, how-
ever, is evidently an attribute of his kinship status, for it does not pass on
to anyone else. Whoever takes his place after his death applies only the
known law. The Gusii law of inheritance-which deals mainly with cattle,
the chief form of heritable wealth-therefore consists of little more than these
same rules of allotment of bridewealth among the family, in the rigid form
into which they crystallize upon the father's death.
From the nature of the conception of egesaku-the lineage that can be
founded only by paying bridewealth for a wife-arises the chief sanction for
the father's just allotment of bridewealth between the various male members
of his family (including himself). The temptation to engross an undue
proportion for himself or for one favourite son is not so strong as it might
appear because the conception of egesaku extends to all those generations
claiming legitimate descent from the founder. A man's interest in his sons'
marriages is scarcely less direct than that of the sons themselves, since in
raising their own ebisaku they will also be increasing that of their father's,
whereas if none of them can raise an egesaku, the father's likewise will soon
die out. Hence it rests with the father to see that his own 'name is not lost'
by securing to as many sons as possible the cattle without which no egesaku
can be carried on. Moreover, should he fail to do so, he and his may suffer
under the vengeance of the spirits of any sons who happened to die unmarried
through his fault.'
It is a corollary of the importance attached to egesaku that the Gusii
believe that 'cattle should not die for nothing'. The precious asset which

1 It is as an apology for failure to provide the marriage-portion that some elders explain
the special rite observed at the funeral of a bachelor, that of throwing onto the grave a stick
from the 'woman's side' of his bed, with the words, 'This is your wife'.







GUSII BRIDEWEALTH LAW AND CUSTOM 27

alone can secure the lawful continuation and increase of the lineage ought
not to be left idle, particularly since it is felt that a herd is more likely
to die out than to multiply with the passage of years-a feeling that still
persists to-day in spite of the decrease of risks from epidemics and raids.
Hence if the person rightfully entitled to certain bridewealth cattle is not
in a position to use them (e.g. by reason of youth or of absence) the animals
should not be kept waiting for him but should be 'borrowed' meanwhile by
another member of the family. In considering the following rules of priority,
particular care must be taken to distinguish between the ultimate right to
bridewealth on the one hand, and the temporary right of user on the other.
The right to 'borrow' bridewealth is itself a legal right, governed by its own
set of legal rules; it is in fact almost as firm a right as the ultimate right;
but it can never extinguish the latter. All Gusii are quite clear in their minds
about the difference between 'borrowing' bridewealth and using it in one's
own ultimate right, even though they may not always make the distinction
explicit when discussing bridewealth law or cases.

i. The rules of priority,
(a) Priority of bachelors. A bachelor's demand for cattle to marry his first
wife takes precedence over a married man's demand for cattle for a junior
wife. This is of course an expression of the principle of securing to every man
his own egesaku.

(b) Seniority. Both sons and daughters should marry in order of age.
Unless there are exceptional circumstances, e.g. chronic illness, a man is
never entitled to marry before his elder full-brother. Only to a lesser extent
is he debarred also from marrying before his elder half-brother : this restric-
tion, being bound to conflict with the principle next to be stated-the
independence of 'houses'-can be upheld only through the making of loans.
The marrying of daughters as well as sons in order of birth means that the
bridewealth received for the eldest daughter is well known to be reserved
for the eldest son, that of the second daughter for the second son, and so on.
Where the father exercises his privilege of marrying with the eldest daughter's
bridewealth,' this will of course mean that the eldest son has to use the
second daughter's, and so on. The son for whom a particular daughter's
bridewealth is reserved is acknowledged to have a special interest in the
marriage of that daughter; he may be asked to give his consent in case she
wishes to divorce her husband, and it is he who will later have to meet her
son's claim for an emesuto heifer.2

(c) Inalienability of bridewealth from the 'house': independence of 'houses'.
In no circumstances can bridewealth animals be permanently alienated from
the 'house' which produced them. A 'house' in this context means the
1 See p. 29.
2 See pp. 33 et seqq.







28 GUSII BRIDEWEALTH LAW AND CUSTOM

group consisting of one wife together with her sons and daughters. To
it belongs of right all the bridewealth received for those daughters, as well
as any cattle added through the labour of the mother and unmarried daughters.
Any transfer of cattle or goats from one house to another is in the nature of
a repayable loan. The claim to repayment can never die out, so long as there
exists an actual or potential male representative or heir in the creditor house.
'A bridewealth debt is a piece of dried meat (ekemoro), say Gusii: it keeps
for any length of time and never goes bad.' The claim can lapse only if the
creditor house becomes extinct; i.e. if no sons of that wife are alive, nor any
descendants of theirs in the direct male line. Even then it may be recovered
if a male heir is born to the widow of any male member of the house, no
matter how many years have elapsed. When a house, becomes extinct its
claims and its obligations are transferred to the house which inherits from it
under the recognized rules of the law of inheritance.1
The principle that bridewealth cannot be alienated from the house results
in the independence of houses as property-holding units. In the polygynous
family assets and liabilities cannot be simply pooled; a deficit of bride-
wealth in one house cannot be made good by a surplus in another, except
through the expedient of a loan. Hence, if the loan is impracticable (see below
No. 5) it may not be possible to follow out the principle of seniority, according
to which it is preferable for sons to marry in order of age regardless of the
house to which they belong.
Furthermore, it should always be remembered that debtors and creditors,
where bridewealth loans are concerned, are not individuals but houses. The
individual borrower or lender will naturally be the person expected to act
when the debt comes to be settled, but his death or absence makes no
difference to the indebtedness.

(d) Linking of houses. The successive pairs of houses 'belong together'-
the first with the second, the third with the fourth, and so on-in a way which
gives each a preferential right for assistance from its partner, and makes
it the heir in case the other becomes extinct. For instance, if there are sons
in both the first and the third houses who are in need of a bridewealth loan,
and if the second house is able to lend, the loan must be made to the first
house (which is linked with the lending second house) and not to the third.
If there is an uneven number of houses the last three are considered to be
linked together, but the middle one of the three ought to act as intermediary
in any bridewealth transaction between the other two.

(e) Enforcement of loans: the father's powers. The temporary transfer of
bridewealth from one house to another by way of loan is made at the instance
of the father, and is theoretically enforceable by him so long as it does not
conflict with known principles such as the linkage of houses. Here, however,
the legal theory-which would allow nobody to contest the father's right-
is more stringent than actual Gusii practice. It is by no means certain that
SSee Chap. V (B).








GUSII BRIDEWEALTH LAW AND CUSTOM 29

a husband will actually be able to force one house to lend to another if the
wife in question resists, although her resistance might be severely condemned
by general opinion.

(f) Respective-claims of the father and his sons. The father is theoretically
entitled to use the bridewealth of the eldest daughter of each or any house
in order to obtain a new wife for himself. He is not allowed to use in this way
the bridewealth of more than one daughter in any one house; nor does the
right apply in the case of a girl who is the only daughter of her house, unless
she has no full-brothers.
In accordance with the principle that bridewealth cannot be permanently
alienated from the house which produced it, the remarriage of a father
with his daughter's bridewealth establishes a debt. The house of the new
wife is indebted to the house by which her bridewealth was provided (or, if
that becomes extinct, to the house next in order of succession). In practical
terms this may mean that a son of the lending-house marries with bridewealth
received for his young half-sister ; but if this simple solution does not fit the
circumstances, the claim will persist into the second or third generation and
may give rise to prolonged litigation.
The exercise of this right of the father's is deemed to be subject to considera-
tion of equity. If the father's own wife is no longer capable of bearing children
he 'ought to' re-marry, even if this means keeping a son waiting. Perhaps
the commonest type of Gusii polygynous family comprises two wives one of
whom is a whole generation older than the other. If the father is a widower,
especially a comparatively young one, he has a strong prior claim, and may
even be considered justified in using for re-marriage the bridewealth of a
younger daughter, to which he is not strictly entitled. In other cases the
claim of a still unmarried son is likely to be held superior to that of the father.
If surplus bridewealth became available after all sons were married, the
question of priority between father and sons would depend on their relative
ages, the number of times each had already married, and similar personal
considerations.

(g) Special rules applying to 'cattle of saving'. Cattle acquired in other ways
than through the marriage of a female member of the family-acquired, for
instance, by means of purchase, exchange or raiding-fall into a special
category, that of chiombe chia'nibo, cattle of enibo or 'saving', and their
disposal is governed by rules different from those applied to chiombe chia'
basubati, cattle of girls or daughters.
(i) If the father acquires cattle or goats through his own personal effort,
e.g. if he grew in his own private garden (emonga) the grain which was
subsequently exchanged for these animals, he is free to dispose of them
as he will. If he marries with them, or gives them to any son for marriage
no debt is established.
It is however considered that the children of a man's youngest wife







GUSII BRIDEWEALTH LAW AND CUSTOM


are those best entitled to be helped out by the father with gifts of cattle
of saving; for 'the elder sons married and had wives to help them, while
the younger ones were still children with their mother'. Hence there is
a presumption that such personal cattle of the father should be reserved
for his youngest wife's children; and if he gives them to members of
any other house, the recipients may later be faced with a claim for
repayment on behalf of the youngest house. The nature of this 'debt'
seems to be on the very borderline between a legal right and an ethical
claim.
The father may, and often does, allot some or all of his own cattle
of saving to the house of a certain wife. By letting it be known that he
wishes them to belong to that wife, he is said to have 'tied the cattle for
so-and-so' (ogosibera chiombe omokungu, to tie cattle for a woman).
Once this is done, the animals are attached to that house as firmly as those
produced through its daughters' marriages, and cannot be shifted from it
without establishing a debt.

(ii) If a wife acquires cattle or goats through her own effort-e.g. by
exchanging grain grown by herself-these animals belong to her house
and cannot be shifted without establishing a debt.
If, as often happens, cattle of saving are acquired through a joint
effort-e.g. of husband and wife, or of two co-wives-an attempt is
made to apportion them according to the extent of the contribution
estimated to have been made by each partner; for instance the first
heifer calf of a cow so acquired may be allotted to the house of the wife
who produced less of the purchasing grain, the cow itself remaining with
the other.

(iii) Cattle of daughters cannot be (as it were) released to become personal
cattle of the father. There is however one beast given in bridewealth which
is deemed to belong to the father personally. This is the 'bull of apron'
given together with the herd of bridewealth cows, which is expressly
allotted to the father for the making of a new hide-apron.
Cattle of saving become subject to all the restrictions governing cattle
of daughters as soon as they have been once used for marriage or have
been 'tied' to a house.


2. Restrictions on the exercise of bridewealth rights
The above principles indicate in which order male members of a family-
group have the right to marry with cattle obtained through marriage of its
female members. There are however certain restrictions on the exercise of
this right. Two have already been indicated: the obligation of lending in cases
where the ultimate right cannot be exercised immediately, and the obligation
of the father to consider the equitable claims of his sons before re-marrying
with bridewealth of his eldest daughter. Apart from these, the elders regard it








GUSII BRIDEWEALTH LAW AND CUSTOM


as a general principle that the elder brothers should try to exercise their rights
in such a way as to protect the interests of the younger also.
If it appears that the incoming bridewealth will not be enough to go round,
and that the younger members of the house or the family run the risk of
being left portionless, the cattle which are to be used by the elder ones should
be kept at home until they have increased sufficiently to provide the nucleus
of bridewealth for the younger brothers. The right of the eldest sons to the
first available bridewealth is in no way impaired, but they are expected to
delay its exercise in the interests of the family as a whole. The fact that this
principle is rapidly becoming obsolescent, besides diminishing the marriage
prospects of younger sons, has meant that in case of divorce the return of the
identical beasts that had been handed over is becoming increasingly difficult
to enforce. It has thus dealt a blow to the method which was formerly
recognized as the most correct one for return of bridewealth.1
A somewhat different situation in which an elder brother may be expected
to waive his right of prior marriage is when the younger brother, having
already acquired a 'chooser', is threatened with the loss of her and all her
children unless they can be legitimized forthwith. It may be felt that the
immediate gain to the family as a whole outweighs the desirability of strict
observance of the rule of seniority.


B. REMAINING ASPECTS OF ASSEMBLY AND DISTRIBUTION

I. Assembly
Apart from the bridewealth of his sisters or daughters allotted to him
under the fixed rules just described, a Gusii has few sources for assembling his
marriage cattle. No person besides his own father2 is obliged to help him.
The only bridewealth animal which a man is likely to receive from outside
the immediate family circle is the heifer of emesuto, which an eldest son
obtains directly from his maternal kin. The custom of giving emesuto is not
specifically connected with bridewealth assembly. The heifer may be claimed
and given at any time during the life of the claimant, either before or after
marriage. Besides, it is not a kinship due owed by the maternal uncle to
his sister's sons as such but a reciprocal due from the man who had the
benefit of the mother's bridewealth. It will therefore be dealt with more fully
where it belongs, under the heading of distribution.
'Cattle of saving' produced by a young man's own effort are, naturally,
considered as his own to marry with. This category has increased enormously
in importance since the days when a bachelor's principal hope of acquiring
cattle for himself lay in raiding. The Gusii themselves are aware of a difference
that European rule has brought about in the relative 'earning capacity' of
the sexes. They say that formerly it was daughters who produced cattle, but

1 See Chap. I
2 Or whoever stands in the father's place, e.g. the eldest brother if the father is dead.







32 GUSII BRIDEWEALTH LAW AND CUSTOM

now sons too acquire them since money can be earned in employment. Gusii
law has not been specifically adapted to this change. A younger brother who
earns his own cattle may marry before his elder brother, in contravention
of the traditional rule of seniority; or he may be forced to wait by a father who
insists on the old forms being preserved. It is mainly a matter of personal
relations between the parties,


II. Distribution
We have described the rules that govern the allotment of a woman's bride-
wealth as between her brothers or other members of the receiving family.
We now have to deal with the remaining aspects of the distribution. Although
it was the main part of a bridewealth herd which normally remained to be
handed on intact to the rightful user-at any rate before Europeans came, when
there was less likelihood of dissipation by sale or slaughter-a few animals
would have to be set aside from the herd or its offspring in order to meet
customary obligations.
The more complex features of the once customary distribution are now
forgotten by all but the most conservative elders. What remains in fullest
force is the principle that at least one animal at some time will have to be
returned to the donor's group. This obligation, however, is usually discharged
out of the increase of the bridewealth, not from the original herd itself. It
usually takes the form of payment of the emesuto heifer, which the Gusii
people regard as one of their most distinctive customs, and which is still as
vigorously alive as the giving of bridewealth itself.
The distribution can be discussed under three headings:
I. Portion of bridewealth to be kept 'at home', i.e. in the house of the
bride's mother.
2. Portion of bridewealth or its increase to be returned to donor's group.
3. Portion to be distributed among paternal and maternal kin of bride.


I. Portion of bridewealth to be kept 'at home'
(a) Cow of seeing the daughter. Conservative elders agree that when a
daughter marries, one of her bridewealth cows ought to be kept at home in
her mother's house, separated from the rest of the herd which may be imme-
diately handed on in marriage by a male member of the family. This cow
is known by various names, of which the commonest are 'cow of seeing the
daughter', 'of greeting the daughter', or 'of feeding the daughter'. When the
beast dies one of its heifers should be kept in its place. The purposes served
are twofold:

(i) To meet such further obligations as may arise in connection with the
daughter's marriage. Chief of these will be the claim for a heifer of
emesuto or of egesango, which should be met out of the progeny of this








GUSII BRIDEWEALTH LAW AND CUSTOM


cow. Further, if the woman dies and a claim arises for a 'cow of shaving'
(eng'ombe ye ritati) or of 'feeding the children' (eng'ombe y'okogonkia
abana), this cow can be used to meet the obligation. Another demand
that may arise, and that cannot be refused, is a request by the daughter
for milk to help to feed her children. She may take away as much
as she likes from her 'cow of feeding the daughter', either for food or to make
butter for ceremonial and everyday anointing; and when the mother
visits her she should carry a gift of milk produced by this cow. 'The daughter
will complain if none of her cows is left with mother. She will ask:
"Who is going to help with milk for my children ?" She likes to see the
cow there when she visits her mother. It makes her proud to say:
"That is my cow".'

(ii) 'Nursing up' (Okogoyerera). The retention of one cow can also serve
the quite distinct purpose of providing bridewealth for younger sons
of the family. If several daughters have married and one cow is kept
at home for each, the increase may ultimately amount to quite a
respectable bridewealth herd for a younger brother.
The custom of retaining a cow 'at home' is by no means obsolete,
but is definitely losing ground. It seems never to have been consider-
ed as an obligation of overriding importance. That is to say, if a brother
very urgently needed the one cow for his marriage it would always be
conceded to him. In that case he might find himself the person liable to
meet the woman's demands for milk.

(iii) Goat or cow of heat. The goat or heifer 'of heat' may be claimed by the
mother out of her daughter's bridewealth and kept behind by her when
her son uses the rest of the bridewealth for his marriage.
Alternatively she c'an make the claim at the time of enyangi. She may
then either claim for herself the 'enyangi cow' which is given as a last
instalment of the bridewealth1 or, if this is not agreed, demand an extra
heifer or bullock or goat from the bridegroom himself. Thus the custom
is vague where details are concerned; like that of marriage gifts in general,
it lays down definitely who has to be the recipient, but leaves the exact
form to be decided according to circumstances.


2. Return of animal to donor's group
(a) Heifer of emesuto. In pre-contact days the heifer of emesuto was claimed
by the woman herself from the brother or other relative who had married
with her bridewealth. 'She went and asked her brother for a heifer that one
of the cows had borne, and he gave it to her because he loved her. In those
days the sister was respected and feared by her brother.' If the heifer was
persistently withheld, the woman could go and tie her belt round the animal
1 See p. 10.







34 GUSII BRIDEWEALTH LAW AND CUSTOM

of her choice: it would then be taboo (omogiro) for the brother to touch it
for any other purpose.
In historical times the custom has changed its form a little, in that the
heifer is now claimed by the woman's eldest son and not by herself. The
present-day Gusii will define emesuto as 'the heifer we get from our mame
(maternal uncle)'. The emesuto heifer can be claimed at any time. In practice
it is often demanded when the eldest son is beginning to assemble cattle for
his own marriage. It must be claimed from the man (if he is alive) who
actually married with the mother's bridewealth, so that if her cattle were used
by her own father, the claim for the emesuto animal will be made against him-
the grandfather, not the uncle, of the claimant. In any case, the claim lies
against the house which the grandfather or maternal uncle in question founded
by means of the claimant's mother's bridewealth; it can be pressed against
members of this house even if the original debtor is dead.
In the highland districts a heifer of emesuto can be claimed by a woman's
stepson if she has no sons of her own, i.e. by a son of the house which is
linked with hers. In the lowland, it will nowadays be refused to any but the
real son of the woman herself.
The son who received the emesuto heifer has to give its first heifer-calf
to his next younger brother. This brother in turn should give the female
progeny of his heifer to his own younger brother, and so until every brother
in the house has received a heifer. Claims for replacement of an emesuto
heifer which dies without progeny are not recognized nowadays, 'unless the
parties are on good terms and like to arrange it between them'.
According to tradition the emesuto animal has to be a physical descendant
of one of the actual bridewealth cows paid for the mother; but practice is
now laxer in this respect, since the 'cow of feeding the daughter' is not
always kept at home as security for it.
The conception of emesuto is clearly reciprocal : the mother's brother does
not owe a heifer to his omoigwa (sister's son) simply as omoigwa, but because
he- the uncle-benefited by the mother's bridewealth. The relationship is
outwardly symbolized during the enyangi ceremony. On the solemn second
night the officiating priest puts down eight sticks in a certain corner of
the bride's mother's hut, of which six are taken away next morning by
the married couple when they set out for home ; the other two which remain
behind are known as emesuto, and the elders explain their meaning as a
symbolic pledge left with the wife's parents to remind them that 'one day
somebody must come back to claim the heifer of emesuto'.1

(b) Heifer of helping (egesango). A simpler form of discharging the same
obligation was the payment of the 'heifer of helping' (egesango, cf. ogosanga,
to help). The first heifer-calf produced by the bridewealth cattle after the
transfer could be immediately reclaimed by the bride and brought back to
her husband.

1 The derivation of the word emesuto is unknown and is used only in this specific meaning
of the sticks put down during enyangi.








GUSII BRID'EWEALTH LAW AND CUSTOM


This custom may well be associated (as Gusii elders themselves think)
with the period of extreme cattle shortage caused by the great plague of the
1890's, when the whole bridewealth might consist of one cow. Though now
practically obsolete, it still crops up in litigation from time to time as the
basis of some inherited claim. It has been almost completely discarded in
favour of payment of emesuto. In the days of the cattle shortage the claimant
was supposed to have the right of choice between receiving the heifer of
egesango at once or that of emesuto at a later date-the two being mutually
exclusive-but later the bride's father recovered the right to insist that his
son-in-law wait for the emesuto.

(c) Other alternatives to emesuto heifer. In certain cases the return of bride-
wealth made in case of a woman's death will consist of a 'cow of shaving'
(eng'ombe ye ritati) and/or a 'cow of feeding the children' (eng'ombe y'oko-
gonkia abana.1 Some elders say that emesuto cannot necessarily be claimed, if
one of these other animals had been returned to the widower. For instance,
(they say) if a widower with four children recovered his cow of feeding the
children the eldest son would have no further claim for an emesuto heifer;
if more than four children survived, not a cow but a heifer would be due which
the eldest son would be able to claim as his heifer of emesuto later. These
are not cut-and-dried rules that can be applied without variation; they are
rather illustrations of the underlying principle as conceived by the Gusii-
the principle that the recipient of a woman's bridewealth owes a sort of
return: this is not bound to take place in any single way or at any single time,
but must be of such a kind that her house receives the benefit.

(d) Cow of chewing millet. The legal obligation is fully discharged by
returning out of the increase of the bridewealth either the emesuto heifer or
the 'heifer of helping', or (in certain cases) by returning the 'cow of feeding
the children'. The amount returned, however, might be increased by the
optional gift of a 'cow of chewing millet' (eng'ombe y'ogotakuna obori). When
the bride first visited her parents after the enyangi ceremony they might give
her this cow to take home to her husband. 'After this she is permitted to
chew millet in her husband's presence. A wife who has not brought the cow
could not do this-it would be mocking her husband.' This custom, which is
now obsolete, seems to have aimed at raising the status of the young wife in
her husband's household by a display of the parents' generosity. It was
rather a freewill gift than an obligation in law. Its sanctions were not legal
but social, and no replacement could be enforced if the animal died.

(e) Goat of the sister. We have mentioned, in connection with customary
gifts, that at the time of enyangi the parents of the bride may be expected to
send one of the bridewealth goats to that sister of the bridegroom who
provided the animals he has now paid them for their daughter. This is not


1 See p. 49.







GUSII BRIDEWEALTH LAW AND CUSTOM


now considered as a binding obligation unless the sister attends the enyangi
and puts forward her claim in person. It may be included here in connection
with bridewealth returned to the husband's group, although the sister in
question will have ceased to belong to that group because of her marriage
to a member of another clan.

3. Distribution among paternal and maternal kin
(a) Paternal kin: cow of paternal uncle.'The only known custom involving
distribution among the bride's paternal kin has now entirely died out, and
can be reconstructed only from the reminiscences of old men. It consisted
in a reciprocal exchange : a father would give one cow from his daughter's
bridewealth to his brother, on the understanding that this brother undertook
to return one from the bridewealth of his own daughter. It would be rash to
speculate at this stage about the functions of this dimly-remembered prac-
tice, but possibly it was no more than a manifestation of normal brotherly
helpfulness, the loan of a cow to one's needy brother against a mortgage on
the latter's daughter's bridewealth.

(b) Maternal kin: cow of honey. Better remembered is the process by
which a maternal uncle of the bride may secure one cow out of her bride-
wealth by following out an elaborate series of exchanges and counter-gifts.
The beast thus obtained is called 'cow of honey' (eng'ombe y'oboke), the
usual interpretation being that 'the man gets this cow because of the love
between him and his sister, which is sweet like honey'. Whether or not this
is good etymology, what is certainly true is that the giving of the 'cow of
honey' does not nowadays take place unless the parties are on friendly terms:
it is not a universal legal obligation.
The mother's brother in question is the one who married with the bride-
wealth of the bride's mother. His right to a 'honey cow' is explained by
Gusii elders as being linked in some way with his obligation to provide
a heifer of emesuto for the son of the same sister. The cow of honey, like the
emesuto heifer, can only be demanded once.
The bride herself takes the initiative in the complex procedure by going
to her mother's brother's place on the day before the first night of enyangi
and spending the night there. She brings him a present of two pots of beer;
when she goes home next morning she takes with her his return gift of
three or five pots of beer, which are to be used that same evening at the ege-
taorio celebration. In the evening the mother's brother follows her and
demands first of all a goat, the 'goat of honey'. Next day, the solemn day of
echorwa, he asks his sister, (the bride's mother) for the cow of honey itself.
This is met by a counter-demand for a bull. He must then go home and fetch
a bull; if it is not a big one he will have to provide in addition a 'goat for the
neck-muscle' (emboriy' esuti). Only after slaughtering the bull-and the goat
if required-at the home of the bride is the mother's brother entitled to
his cow: he can enforce his right if necessary by placing his hand on the








OUSIt f1lRDVWVALTIl LAW ANt) CUSTOM


sacrificial enyangi goat and thus holding up the proceedings until his demand
is met.
This is not the end of the transaction. After receiving the cow the mother's
brother has to send to'his sister the 'goat of belt' (embori y' orokini)1 which
she in turn has to pass onto the bride. 'When the bride receives the goat
she knows that her mother's brother has had his cow of honey. If she does
not get it the bridegroom will complain, and even refuse her food, because her
mother' s brother ought to acknowledge the cow he received out of the
bridewealth.'
Thus the maternal uncle will have given three or five pots of beer, one
or two goats and one bull, and he will have received two pots of beer, one
goat and one cow. According to the Gusii scale of values he comes out of it
with a slight but definite profit.
The custom is now almost obsolete, but is clearly remembered by most
elders. Emphasis lies on the fact that the whole transaction depends on
friendly relations. If bridewealth had to be returned because of divorce,
the wife's father could reclaim the cow from her mother's brother only by
friendly persuasion. The mother's brother on his part could not demand
replacement as of right if the cow died without progeny.

(c) Goat of the grandmother. The maternal grandmother of the bride (or
the grandmother's son) may also receive from the bridegroom one goat at
the time of enyangi. This gift, which is not strictly part of the distribution of
the bridewealth, has already been dealt with in connection with the customary
marriage gifts.


1 Cf. the sister's use of her orokinito enforce her claim against the same brother for a heifre
of emesuto.












CHAPTER IV

THE MAINTENANCE OF EQUILIBRIUM:.

REPLACEMENT AND RECOMPENSE


INTRODUCTORY


GUSII bridewealth law provides in various ways for the maintenance of
the equilibrium brought about by an initial bridewealth transaction.
When egesaku' A loses a woman to egesakuB, the balance is restored by the
reverse transfer of bridewealth from B to A, but the mutual obligations do
not cease with this immediate achievement of equilibrium. As long as B
have possession of the woman (or an adequate number of her children),
they are obliged to maintain group A in full possession of the bridewealth
equivalent. Conversely, as long as A have possession of the bridewealth
animals (or an adequate number of.their progeny), they are obliged to
maintain B in possession of the woman. In neither case does the obligation
cease after A have passed the bridewealth on to a third party.
On this principle of perpetual equilibrium are based the laws govern-
ing (a) replacement of bridewealth animals which die or are somehow lost
after transfer and (b) recompense of a husband (or his heirs) if the wife dies,
goes away, or devaluatess'.
The obligation of maintaining equilibrium in perpetuity is what chiefly
distinguishes the Gusii bridewealth system from the European conception
of sale and purchase. On the other hand-what seems more important-
it emphasizes the strong resemblance between the marriage transaction and
those other customary exchanges of animals which before the advent of
Europeans took the place of buying and selling, there having been no exact
counterpart of 'purchase' and 'sale' in the traditional economy. The Gusii
system, placing women, cattle, goats, and grain in this order of descending
value, regulates the exchange of any kind into the next less valuable kind
by just the same set of principles.
A single example may be given to illustrate the similarity. In the commonest
economic exchange, A gives one cow or heifer for several goats of B's;
if one of the goats thereafter dies without progeny B mustreplace it upon
return of the corpse, but if the cow itself dies without progeny A will not
give another until he receives an extra goat from B. In just the same way,
when A gives his daughter for several cows of B's, if one of the cows dies
without progeny B must replace it upon return of the corpse, but if the
1 For the meaning of egesaku see p. 4.








GUSII BRIDEWEALTH LAW AND CUSTOM


woman herself dies without progeny A will not give another as riika until
he receives an extra cow from B. It will be observed from these two cases
that while there is no constant principle for the form of liability on the death
of a cow as such, the liability is determined by the r6le which the cow played
in the particular exchange. The parallel to the cow in one case is not the cow
in the other but the woman.
Gusii women say of themselves: 'We are bought like cattle'. What has
just been mentioned is one of the lines of argument which suggest that this
may be somewhere near the truth. A further discussion of this point must
be postponed together with that of other significant questions. For instance,
we should want to ask just how the payment of cattle is conceived to make up
for the loss of a daughter, and why the arrangement needs to be maintained
in perpetual equilibrium-questions that should lead to something of import-
ance for the understanding of Gusii social structure and systems of value.


A. REPLACEMENT OF BRIDEWEALTH ANIMALS BY THE DONOR

A debt on account of the death of bridewealth animals is (like any other
bridewealth debt) theoretically imperishable. It remains unaffected by the
passage of time and by the number of times the animal may have changed
hands.
The responsibility extends to all the 'substitution' (nyaika) cows and goats,
but not, naturally, to the calves and kids if these were not counted. A bull
or he-goat need be replaced only if it dies within a short time after the
transfer-say a few months-and if it had not meanwhile been handed on
to a third party. This claim however rarely arises since what the bride's
father traditionally does with the bull is to slaughter it himself to make a new
skin apron.

I. Procedure for claiming replacement
Unless the claimant follows the correct procedure, replacement may be
refused by the donor.
The donor has to be called to view the corpse, and probably takes the
opportunity to enquire how the animal died and to confirm that he really is
liable for replacement (see No. 4. below).
The animal is skinned, and the donor receives the hide, together with the
meat or a quantity of grain or dry beer representing its value; nowadays
money is commonly substituted for the latter. (It should be for the donor
himself to exchange the meat for grain and have the grain made into beer;
but if his coming is so long delayed that the meat starts to go bad, the
claimant should do it on his behalf).
If the donor is unable or unwilling to come and view the corpse, the claimant
must send him the hide and the 'meat' (i.e. dry beer). This practice appears
to be becoming more and more common nowadays in place of sending the








40 OUSII BRIDEWEALTH LAW AND CUSTOM

traditional summons. If the claimant keeps the hide and meat for himself
instead of returning them to the donor, he will have to give the latter instead
a 'goat for the corpse' (embori y'egetondo.)
If the donor himself had previously received the animal as nyaika in bride-
wealth from a third party, he is not expected to provide the replacement
himself, but to pass on the hide and 'meat' to the party in question. The hide
and 'meat' should travel in this way all along the chain of donors, as far
as the person who was the first to give the dead animal as nyaika. (Any
member of the chain may if he wishes keep the dry beer and send a goat in
its place.) The original donor is then liable to provide the substitute animal,
which will be handed along the chain in the reverse direction until it reaches
the claimant. The complexity of the process must have been much enhanced
by the tendency for bridewealth herds to circulate more rapidly, now that
they are not so commonly kept at home to increase.

2. Natural replacement
In certain circumstances a dead bridewealth animal is held to have replaced
itself by its progeny, and no further claim can be made against the donor.
Before the days of European influence a cow was considered to replace itself
by either one female or two male offspring. In modern times, when bulls
have acquired a greater relative value because of their new-found usefulness
in trade and as plough-oxen, a man may sometimes be satisfied with progeny
of one bull-calf. If he is not satisfied, he will have to return the bull-calf
to the donor, as well as the skin and 'meat' of the dead cow, if he wants full
replacement. Alternatively he may keep its calf, but he will then be entitled
not to a cow but only to a small heifer, 'as the bull's mother' bunaa ng'ina
eeri).
SWhen an animal dies leaving progeny which are considered sufficient
replacement, the donor merely inspects the corpse and leaves the skin and
meat where they are. But if the progeny also dies without leaving any
'replacement', the donor may be liable for giving a new animal after all.
In this case the claimant would have to return the skin and 'meat' of both
mother-cow and heifer. The claim for replacement can persist even further :
if a cow A leaves a heifer B, which then dies leaving a heifer C, which in
turn dies without progeny, the original animal may be replaced : there is no
theoretical limit. At present such extended claims are met 'only if the
parties are on good terms'; the practice perhaps dates from the time when
a single cow might constitute the whole bridewealth.1

3. Type of animal accepted as replacement.
A dead or lost animal must be replaced by another of the same category-a
cow by a cow or large heifer, a bull by a bull. But if the claim is met out of
courtesy rather than as an incontrovertible due-e.g. if the animal being
replaced is not the original cow but its 'granddaughter'-a small heifer may


SCf. p. 35.







GUSII BRIDEWEALTH LAW AND CUSTOM


replace a cow. The claim cannot, as it were, sink lower than this. Only cattle
can replace cattle, and no quantity of goats-still less of money or of any
other commodity-will be accepted instead.
If the claim for replacement arises some years after the animals were
originally given it may be somewhat reduced. For instance, if four cattle die
without progeny several years after the marriage, only three need be replaced,
or two might replace three. If the claim arises immediately after the marriage-
say, within a year-it must be met in full. The distinction is an elastic one
based on a general principle and not on a precise time-limit.
The non-replacement of bridewealth animals, if the claim is on a fairly
large scale, constitutes valid grounds for divorce. The wife's father, that is,
has the right to take back his daughter and marry her to somebody else,
as long as he returns whatever balance still stands to the credit of the default-
ing husband. The Government-sponsored Tribunals nowadays often decree
the return of a wife to her father in default of replacement of cattle. But if
the marriage had been completed by enyangi this proceeding is ruled out.
The father who makes enyangi for his daughter gives up the power of taking
her away from her husband. Claims for replacement of cattle are as valid
after enyangi as before it, but are not to be enforced by the same kind of
self-help.


4. Responsibility for loss
In general, the recipient of bridewealth loses his right to replacement if
his own deliberate action was the proximate cause of his losing the animal.
This appears to be the sole criterion : the question of 'moral' responsibility
is unimportant.
Thus no replacement could be claimed if the animal was killed by the
claimant, either deliberately (e.g. for food or sacrifice), or accidentally, as
in drawing blood. If he kills it accidentally, 'that is his own misfortune'.
But replacement can be claimed in the following cases :
(a) If the animal died through the claimant's own negligence, e.g. because
of an avoidable accident which took place while he was not looking after
it properly.
(b) If it was stolen, even through negligence; 'if twenty bridewealth cattle
were to be stolen on the day after the marriage, they will all have to be
replaced.' The claimant will, of course, have to show that he made
reasonable efforts to recapture the stolen animals.
(c) If the animal died as a result of natural calamity, e.g. through being
struck by lightning. (In this particular case the skin is not returned, as
the skinning of animals killed by lightning is taboo.)
(d) If it was killed by witchcraft or other people. Elders say that if several
animals were killed in this way the donor is not obliged to replace the
whole number, but he should replace a fair proportion, say half.







42 GUSII BRIDEWEALTH LAW AND CUSTOM


B. RECOMPENSE FOR LOSS OF A WIFE


I. Grounds for recompense
Bridewealth must be returned, in whole or in part, if the marriage comes
to an end before the husband's egesaku has had reasonable benefit from the
wife's capacities for childbearing and for food-producing. This may happen
either through the death of the wife (in which case another girl may be given
as an alternative to return of the bridewealth), or through a breakdown
involving final separation of the spouses. Under the Gusii system of levirate
marriage, the death of the husband does not in itself mean that the wife's
childbearing and working capacities are lost to his egesaku; this loss will
occur only if and when a man of another clan pays bridewealth for the
widow. Hence a claim for return of bridewealth, either through death or
by the way of divorce, may be made in respect of a widow as well as of a
wife.
A partial return of bridewealth, but not a legal divorce, may be enforced
if the wife devaluatess' in certain ways through illness, injury, or the discovery
of her barrenness. In such case the marriage is expected to continue, and
the return of some cattle is meant to compensate the husband for the partial
loss of his wife's capacities.


2. Responsibility for the debt
Repayment is supposed to be made by the person who actually used the
woman's bridewealth animals for his own marriage, not by the person who
received them. Thus though the claim is usually in practice made against
the father (who received the bridewealth), the father is said to 'give some
cattle to his son' (who married with the bridewealth) for the latter to meet
the debt.
Claims for repayment are imperishable. They lie in the first place against,
the house from which the woman came, or, if this becomes extinct, against
the house next in order of inheritance, so that the death of the wife's father
or of the person who actually married with her bridewealth has no effect
on the debt.
Similarly the death of the husband does not affect the claim of his egesaku.
It is common to find a grown-up son claiming bridewealth owed on account
of the desertion of his mother many years ago.
At any stage in the history of the debt settlement may be effected by the
giving of a woman in place of cattle.
Mutual responsibilities of the two parties cease entirely when bridewealth
has been returned in full. No claims can arise regarding the animals that
have been duly returned to the donor; the marriage is dissolved, and the








GUSII BRIDEWEALTH LAW AND CUSTOM


original cattle-transaction is as though it had never been. On the other
hand, when partial return only is made, because of the survival of some
children, mutual responsibilities do not cease to exist. If one of the offset
animals subsequently dies without progeny the donor will have to replace it,
so long as his children are alive.


3. Recompense in case of death
(a) Forfeiture of rights. The right to return of the bridewcalth paid for
a dead wife is forfeited if the husband (or anyone of his homestead) can be
proved to have killed her himself either accidentally or deliberately.1 A post-
mortem is sometimes carried out by a native surgeon in doubtful cases. If
the wife was killed by a third party the claim against her family does not
arise, for it is the murderer who will have to pay her husband's egesaku the
normal compensation which consists of a number of cattle equal to a bride-
wealth payment.

(b) Substitution of new wife. A widower need not necessarily receive his
recompense in the form of returned bridewealth : he may instead accept
another woman provided for him by the family of his dead wife. This
arrangement cannot be insisted on by either party as a right, but can only be
made by mutual consent. The substitute wife so given is termed a riika,
'replacement' (for root-ika, cf. nyaika).2
For legal purposes the substitute wife is identical with the dead woman.3
Her children and the dead woman's count as full siblings, that is, they belong
to the same house.
The substitution cannot be suggested by the widower himself, the proposal
has to originate with the dead woman's family. They often see it as a welcome
escape from the burden of a cattle debt which they are unable or unwilling
to meet ;4 or sometimes a girl may herself demand to be sent to care for the
motherless children of her dead sister. The widower, for his part, may be
glad to accept the arrangement in the interest of his children; or he may
submit to itfaute de mieux, where he knows that the bridewealth is irrecover-
able in practice though not in law.
Some additional bridewealth has to be paid on account pf the substitute
wife. If the widower was entitled to return of bridewealth in full he will pay
only one or possibly two additional cows, and perhaps the same number of

SCf. The rule regarding responsibility for the death of bridewealth animal, p. 41.
SSee p. 15.
3 The legal identity is reinforced by magical sanctions. The girl must take care not to
belie it by her behaviour, for if she forgetfully continues to address her new husband as
mokoyone (brother-in-law) instead of omosacha (husband) a magical retribution will follow.
Such a break apparently is taken very seriously ; I was told that 9 girl may be sent straight
home again to her parents if she transgresses.
4 It may happen that in their eagerness to avoid repaying cattle, Gusii debtors give a
substitute wife in flat contravention of the kinship laws. I know of a couple of cases-not of
very recent years--of a man giving his own daughter to his dead sister's husband, although
the girl was a classifactory 'child' of the widower and sexual relations between them must
infringe a grave taboo.








44- GUSII BRIDEWEALTH LAW AND CUSTOM

goats. If he was entitled to partial return only, he will pay as many cattle
as would have been kept back by the woman's family had the bridewealth
been returned. If he was not entitled to any return at all, he will have to pay,
bridewealth in full, and the transaction will look rather like a new marriage.
It should be noted that the substitution of a riika is not the only case in
which the giving of a woman is a possible alternative to the settlement of
a bridewealth debt by repayment of cattle. It is the commonest, and the most
precisely regulated, but in principle many other bridewealth claims-and
even cattle claims not directly arising from bridewealth-can be met in the
same way. A man I know of (for instance), having accidentally killed a
youth and being unable to pay the father the required compensation, handed
over his daughter instead to be wife to another son of the family. While such
transactions can only be made by mutual consent, in themselves they are
perfectly consistent with the principles of Gusii law. Whether one receives
a woman, a bridewealth or compensation payment or a small girl whose
bridewealth will be earned in due course, the net benefit to the egesaku is
conceived as being'much the same. From this point of view the individuality
of the woman is irrelevant unless she falls markedly below marriageable
standards of health or presentableness.

(c) Procedure for claiming return of cattle.When a woman has died and her
parents (or their representatives) have come, as is proper, to wail over her
grave, the widower can demand one cow as a first instalment of whatever
bridewealth may be due for return. This is the 'cow of shaving' (eng'ombe
ye ritati or y'amatati: eng'ombey'etukia), for he can insist on its being paid
before the mourners carry out the ritual funeral shaving. If the parents had
kept behind one 'cow of seeing the daughter' from the original bridewealth
this animal or one of the offspring can appropriately be given to meet the claim.
The recovery of the remainder of the bridewealth, in spite of the legal
imperishability of the claim-or perhaps just because of it-may be an
extremely lengthy and hazardous process. The debtor may be unable to do
more than to mortgage the bridewealth of a daughter still unmarried or
even unborn : or he may simply try delaying tactics with the object of ultimate
evasion.

(d) Number and type of animals to be returned: general principles. There is
a distinct tendency to restrict the amount of bridewealth returnable in case
of death, as against divorce. This seems to be based partly on the consider-
ations that the husband should already have had a certain benefit from the
woman's labour, and that death after all is nobody's fault.
This tendency is shown in the rule now applied by the Native Tribunals,
that when the claim arises from death, not divorce, no goats can be recovered :
the husband's claim is restricted to the cows. The same idea seems to lie
behind the version given by some elders who say that even a nominally
complete return of the cattle in case of death should exclude one cow.








GUSII BRIDEWEALTIH LAW AND CUSTOM


In spite of the fact that the return is supposed to be made so as to enable
the bereaved husband to remarry, the system takes no account of changes
that may have occurred meanwhile in the average level of bridewealth pay-
ments. This can bea serious matter; for instance, a husband who paid three
cattle for his'wife when that was the average level, but reclaims his bride-
wealth when the level has risen to fifteen, will obviously not be enabled to
get another wife.
Deductions must of course be made for any animals that have died since
the transfer and not been properly replaced.

(e) Specification of animals to be returned. Elders maintain that in former
days it was considered desirable or even essential to recover the identical
cattle that had been paid over as bridewealth, or the progeny of such as were
no longer alive. They say that people held by this system-though realizing
it was a clumsy one-because they feared otherwise being forced to accept
beasts inferior to the ones they had given. The custom is now falling into
disuse, partly it seems because of the increased rapidity with which bride-
wealth herds change hands or become dissipated through sale and slaughter.
It was not (even in traditional times) applied in the case of goats.
Where the identical animals are to be repaid, it rests with the debtor to
recover them from any third party to whom they may have passed meanwhile.
Thus if A is claiming back the bridewealth he paid for B's daughter, and
B's son has already used it to marry C's daughter, it is for B (or his son) to
collect together a herd with which he will 'redeem' (okoboria) the original
animals from C; they are then returned, by B to A. B will not necessarily
have to present the entire number of cows in order to redeem the original
ones from C; he might (for instance) redeem a herd of 8 by paynient of 5
and promise of 3.
Where the original animals are not to be returned, the debtor has to provide
beasts of the same category-a cow or large heifer in place of a cow, a bull
or bullock in place of a bull.

(f) Right to return of offspring. At one time a widowed husband was
theoretically entitled to return of all offspring of the bridewealth cows,
including all those born after the original transfer. This right must always
have been difficult to enforce and productive of endless disputes, since there
was no generally recognized way of checking the number of calves born
after the transfer. The present practice of the Native Tribunals is to refuse
to consider claims for offspring born after the transfer, but return of the
offspring actually given with the bridewealth is enforceable at law.

(g) The cow of spear. When a wife dies in childbirth or through accidents
of pregnancy her family are entitled to deduct one cow from the number
that would otherwise be returnable to the widower. This is the 'cow of
spear', (eng'ombe ye ritimo). Elders say it is paid because the spear (male
organ) of the husband brought about the death of the woman. We may







GUSII BRIDEWEALTH LAW AND CUSTOM


recall in this connexion the ruling that a husband who kills his wife even
accidentally forfeits his rights to the bridewealth.


4. Specific rules governing number of cattle returned
The exact number of animals to be returned when a wife dies depends on
the number and age of the children who survive her; but the ways in which
this principle can be applied and interpreted are bafflingly numerous and
mutually inconsistent. There are few other topics in Gusii law that give rise
to so many contrary interpretations as this. Determining the portion of
bridewealth to be returned is, like the division of inheritance between
full-brothers, a legal game on which Gusii elders like to sharpen their wits.
The two main methods of assessing return, which we may call for short
the 'chief's system' and 'elders' system' respectively, will be defined when
we come to deal with those cases in which they diverge. At the two extremes
there is unanimity; all Gusii agree about the right to entire return in some
cases, or the complete offsetting in others.

(a) The wife who dies 'entire'. Bridewealth must be returned in full if a wife
who was still capable of bearing children dies omogima, 'entire'. This applies
if the wife (a) leaves no surviving children, or (b) leaves children who how-
ever die later on before reaching marriageable age. In the latter case the
claim for complete return comes to life on the occasion of the loss of the
last child.
The completeness of the return is subject to the exceptions already
mentioned. Goats will not be returned, nor offspring born after the transfer,
and the cow of spear may be deducted if the woman died through pregnancy.
As we shall see, if a woman dies after she has passed the age of child-
bearing the claim will not arise, even if she left no children at all.

(b) The wife who 'pays for herself'. On the other hand, no bridewealth need
be returned at all if the wife has 'paid for herself' in any of the following ways :

(i) By leaving one married son. In this case 'the egesaku is standing':
the lineage has a good chance of being carried on into the third generation,
and meanwhile the married son is held to be capable of looking after
any younger children left by his mother.
(ii) By leaving one married daughter. In this case 'you have received cattle
for your daughter, with which you can get another wife-now what
more do you want ?'
(iii) By 'growing old' at the husband's homestead. This in practice means
passing the age of childbearing, and attaining the status of omong'ina, 'old
mother'. Even if a woman of this age leaves no children she is considered
to have 'paid for herself' by her lifetime of work at the husband's home.








GUSII BRIDEWEALTH LAW AND CUSTOM


In the concrete Gusii terms she may be supposed to have produced so
much grain that he-with no child to feed-could barter it for cattle
to take the place of those he gave for her.

(c) Intermediate cases: the two systems. We now have to consider how
Gusii law deals with cases where the wife neither 'dies entire' nor 'pays for
herself'. These are, of course, the cases where a certain number of young
unmarried children survive.
Two different methods have been known and used by the Gusii for calculat-
ing the amount of compensation due to a widower in such cases. One of these
assesses the compensation on the basis of how much of the woman's pre-
sumed childbearing capacity remained unused when she died. The other
relates the compensation to the degree of security obtained by the husband
for the continuance of his lineage. The first method, which involves simple
offsetting according to the number of children, is. said to have been intro-
duced at the beginning of British rule. Elders maintain that the Govern-
ment-appointed chiefs represented it to the Administration as being the
native law and custom, whereas really it was an innovation of the Chiefs'
own, designed to benefit wealthy polygynists like themselves. This system
(whether new or not) was applied for a generation or so, until in the 1930's
Tribunals were authorized to use the other system, which, instead of gradually
tapering off the compensation in proportion to the number of children,
sharply reduces it at the point where two children survive.
According to this view, it would appear that the change of the 1930's was a
return to old Gusii practice. It should, however, be added that the other
system is' occasionally claimed as original native tradition by elders who can
know little of the deliberations of chiefs or Administration. It may well be
that both systems are indigenous and antedate British occupation. As
already stressed 'the native law and custom' is not likely to be reducible
in every case to a single consistent formula.
The following table, showing how Gusii elders would assess the amount
of bridewealth recoverable by a widower who had paid ten cows for his dead
wife, illustrates the fact that' the difference between the two systems of
calculation has more than theoretical significance,:

No. of children No. of cattle to be returned to widower
surviving

'Chiefs' system' Elders' system
One 9 cows, 1 heifer of emesuto 9 cows, 1 heifer of emesuto
Two 8 cows, 1 heifer of emesuto 2 cows, 1 heifer of emesuto
Three 7 cows, 1 heifer of emesuto 2 cows only
Four 6 cows, 1 heifer of emesuto 1 cow only
Five 5 cows, 1 heifer of emesuto 1 heifer of emesuto only
Six 4 cows, 1 heifer of emesuto 1 heifer of emesuto only
Seven 3 cows, 1 heifer of emesuto 1 heifer of emesuto only
Eight 1 cow, 1 heifer of emesuto 1 heifer of emesuto only







48 GUSII BRIDEWEALTH LAW AND CUSTOM

(i) The Chiefs' method. The principle that a woman does not 'pay for
herself' unless the husband has had the full benefit of her child-bearing
capacity means that the bridewealth must be returned unless she
leaves him with the entire number of live children that a woman can
reasonably hope to produce during a normal lifetime. Anything from
about eight or nine children upwards (naturally the number is not
exactly defined) would mean that a wife had 'paid for herself'; no bride-
wealth need then be returned except one 'cow of shaving' to compensate
for the loss of the remaining years of her childbearing life.
If she left any number of children short of this, bridewealth would be
returned to the widower, but a specific number of cows would be offset
against the number of surviving children. Whenever possible this off-
setting would take the simple form of one cow for one child of either sex.
But the 'one-for-one' method could not be applied if the bridewealth had
been small. For instance if three cows had been paid and three children
survived, the whole three could not be offset-'because three children
do not pay for a woman entirely'. In such cases another method would
be applied instead : two cows would be offset for the three children,
as representing a reasonable proportion of the original bridewealth.
The 'one-for-one' principle lost in usefulness in latter years for the
opposite reason: at this period bridewealth payments were not too low,
but too high to suit it. Thus if 16 cows had been paid and four children
survived, the elders would feel that a husband was being rather exorbitant
in demanding return of 12 and would often recommend that one or two
extra cows be included in the offset. There seems to have been no hard-
and-fast rule about this: whether or not the widower agreed to the
concession would depend on the personal relations between the parties.

(ii) The Elders' method. The alternative method, said by most elders to
represent the genuine Gusii custom of former days, goes on the principle
that a woman can pay for herself without having given the full benefit
of her child-bearing capacities, as long as she does leave enough children
to ensure the continuance of her husband's egesaku. One child does not
fulfil this condition: the fate of the lineage would hang on too slender
a thread. Therefore, if only one child survives, the bridewealth must be
returned, less an offset of one animal only-a heifer for a girl, a bull
for a boy. So far (except in making the distinction of sex) the system agrees
with the one already described; but from this point it differs, making a
sudden jump after the second child. If two or more children of either
sex survive 'the egesaku is standing'; therefore the husband need not
be enabled to marry again. He will receive only one cow of shaving
and one cow 'for the children' (eng'ombe y'okogonkia abana, 'cow of
suckling children', or simply eng'ombe y'abana, 'cow of children').
The latter is said to provide the widower with milk to feed the children
who have now no mother to prepare their food.
SCf. The 'telescoping' of marriage gifts, p.'17.







GUSII BRIDEWEALTH LAW AND CUSTOM


However, the return should still be graduated according to the number
of surviving children. If four children survive, the return should be one
cow of shaving; there will probably be no 'cow for the children', but
the eldest son can make the normal claim for a heifer of emesuto to be
given later. The elders say that a woman who left as many as four
children 'has not died'. If there are six children the cow of shaving
will still be returned but it will probably be held to represent the
heifer of emesuto as well. These figures are approximate ; some elders
would say (for instance) that the claim to a heifer of emesuto lapses not
after four but after three children, and some hold that the single animal
which should be returned if six or more children survive is not a cow
(of shaving) but a heifer (of emesuto). But though the figures vary the
principle they illustrate is constant.
The cow 'for the children' may not be returned if one brother is
already married; in this case he is supposed to be able to look after his
juniors.


5. Partial recompense
In cases of sterility and other serious disability in a wife, the husband is
entitled to a partial return of bridewealth-say three or four cows out of
a payment of ten or twelve. If any claim for return subsequently arises,
through death or divorce, the number repaid in compensation for sterility
or disability will have to be deducted. It is a kind of advance part-payment
of a debt which perhaps may never be claimed as a whole.

(a) Sterility. A woman will, of course, be suspected of sterility if her
co-wives bear children and she does not. If she is an only wife other steps
have to be taken. In such a case another man will be privately asked to play
the part of 'warmer of the house' (omosoi nyomba) and try to make her preg-
nant. Alternatively, or at the same time, the husband will become 'warmer
of the house' to a widow in order to discover whether his wife's childless-
ness is not in fact due to his own sterility.
When a wife's sterility is considered to be proven, her husband loses the
right to divorce her on his own initiative. He can claim the few cows which
are considered his due in compensation for the loss of children, but he has
to keep the woman herself, unless she deserts or gives some other provo-
cation.

(b) Serious disability. On the same principle partial compensation might
on occasion be claimed for a wife who through illness or injury became
totally unable to work or bear more children; not, however, if the husband
himself had been responsible for the injury.







GUSII BRIDEWEALTH LAW AND CUSTOM


6. Recompense in case of divorce
(a) Definition of 'divorce'. In the period between the initial negotiations
of the go-between and the final celebration of enyangi there lie certain recog-
nized points at which a marriage may be terminated at the request of one or
other party. At the earlier stages we may speak of 'breaking off the match'
rather than of 'divorce' proper, though the transition is not clear-cut. When
the last of these recognized opportunities has passed it is still possible for
divorce to take place if either party can persuade the elders of both families
of the seriousness of his or her complaints. After enyangi divorce acquires
additional solemnity and must be signalized by a semi-ritual act-the cutting
of the thongs of the woman's left ankle-ring by means of the man's spear.
Divorce, in the sense in which I shall use the term, must be distinguished
from mere separation of the spouses. It is by no means uncommon for a
married couple to be parted for many years-for instance if the wife has
deserted her husband for a lover-without the marriage being formally
brought to an end. The crucial difference between a separation of this kind
and a divorce proper is, of course, that separation as such does not affect the
rightful allegiance either of the woman herself or of any children borne by
her at any time. Divorce proper is a legalized process to detach the wife and
children from the husband's egesaku. Its essential feature is the return of
bridewealth.
The opportunities for breaking off a match in the early stages constitute
a social recognition of something unrecognized in legal theory, namely the
importance of personal consent on the part of husband, and wife themselves.
While legally speaking there is nothing to prevent a Gusii father from forcing
his child of either sex into a marriage with any partner of the father's choice,
in practice the traditional marriage preliminaries demand that the son or
daughter be induced to give at least an appearance of consent.
If a girl is unfavourably impressed by her first sight of her suitor she is
traditionally entitled to dismiss him at the very outset. It is when she meets
him outside her mother's hut on his first formal visit 1 that she may turn
him away with the formula 'leave our front yard' (karwe isiko rieto). Once
he is inside she has to bring him some gruel' prepared by herself as a token
of her willingness to carry on with the match. If the suitor himself is dis-
satisfied he is not supposed to express his reluctance so frankly but to wait
till he gets home and then privately request his father to drop the negotiations.
A second opportunity for withdrawal arises after the feast of 'eating at the
place of the in-laws' when the girl and the suitor hear the views of their
respective friends who attended the feast. I am told that an adverse verdict
would be taken seriously. At this stage, too, the girl's mother can put in
a word if she was not satisfied with the suitor's behaviour towards herself.
It has already been mentioned that at the conclusion of egechabero-the
'honeymoon' period after the main cattle transfer-a father must seriously
consider his daughter's views about returning to her husband. Gusii say
SSee p. 6.








GUSII BRIDEWEALTH LAW AND CUSTOM


that she must go back 'by herself', not under compulsion from anybody, and that
the gifts of food she will carry with her are tokens of her willingness. This is
in marked contrast to the convention that required her to simulate resistance
when she first travelled the same road some weeks previously.
It goes without saying that the giving or withholding of consent at any of
these stages may be decisively influenced by parental pressure. But the fact
remains that consent is the social norm. A Gusii father knows that he
would risk a measure of social disapproval if he insisted on a marriage
without obtaining at least the decent show of consent from the child concern-
ed, or if he obstinately refused to allow a divorce for which there were
known to be strong personal reasons.
A rather different opportunity-for calling off a marriage is one that may
arise about the time of enyangi. If a husband suddenly finds himself unable
to pay over the necessary final instalment of bridewealth when the wife's
people have made all their preparations for enyangi, he may be set aside in
favour of another man who is able and willing to pay over the whole bride-
wealth at once. The Gusii term for this procedure is 'cutting in' (okonacha),
and the explanation I always had from informants was that 'it would be
a pity to waste all the beer. and food that had been got ready for enyangi'.
Though I have come across only one case in my own experience, the idea of
'cutting in' seems to be quite familiar in principle to most Gusii.

(b) General principles. When a woman is lost through divorce, the return
of bridewealth may be on a more generous scale than it would have been
in the case of her death. If she is lost 'entire' not only the cattle but the
goats and even the customary marriage-gifts will have to be returned. The
elders justify also this distinction not only by pointing out that 'death is
nobody's fault' but also by the fact that the father of a divorced woman will
be able to marry her off to another man and get all the 'profits' of her
marriage over again.
Divorce law has altered radically since the days before British Administra-
tion. Traditionally the only possible form of divorce was a complete annulment
of the marriage. The husband had to choose between the cattle and the house,
i.e. his legitimate children by this wife. To recover the former meant to give
up the latter entirely. The modern system is a compromise which allows
the husband a partial claim on both bridewealth and children. As interpreted
by the Administration, the new system is undoubtedly more humane,
particularly from the point of view of the woman. In achieving this advance
the law has inevitably had to sacrifice some of those features that formerly
helped to guarantee the stability of marriage. Like any other divorce law,
it has had to admit the incompatibility of two desirable objectives : on the
one hand a humane treatment of individuals unhappily married, on the other
hand the preservation of the strength and inviolability of marriage-bonds as
such.
Something must first be said about the main differences between the old
and the new divorce laws.







52 GUSII BRIDEWEALTII LAW AND CUSTOM

(i) Traditional divorce. The traditional law was based on an unshakeable
conviction that a woman will not stay away indefinitely from the place
where she has left her legitimate children. If a wife went away to another
man, leaving even one child behind her, the husband would normally
make no attempt to recover his cattle. His best course was to bide his
time, knowing that when she eventually returned she would have to
bring with her any children that she had had meanwhile by other men.
All these children would be legally his. The father of the woman would
not accept from any other man a second bridewealth payment for her,
unless he wanted to involve himself in the magical danger (emuma) of
having 'two men's cattle for the same girl'.
The security for the woman's eventual return lay partly in this very
fact that no other men could have legitimate children by her. For in such
circumstances her children and herself could not escape the feeling of
being received merely on sufferance wherever they went, until they
returned to the home of the legal husband and father. Their status
outside that house would be the uncomfortable one of 'swallowed thing'.1
If the husband preferred a divorce, however, he would have to give up
the woman's children as well as herself. He would then recover the entire
bridewealth, losing all rights over the children the woman had already
borne by him as well as any she might bear subsequently. This alter-
native was often preferred when the woman had taken her children
with her into the territory of a hostile clan, where the jural father
would find it impracticable to pursue them so as to recover their custody
or to enforce any of his legal rights over them. Again, if a husband
has been convinced that his wife practises witchcraft, he will voluntarily
relinquish his rights over her children, who would be expected to
inherit their mother's propensity to evil.2

(ii) Modern system. The rules now applied by Native Tribunals and by the
Administration make it possible for a woman who enters into two or
more successive marriages to have two or more successive legitimate
families-something that was ruled out under the traditional system.
A husband who agrees to divorce his wife is nowadays entitled not only
to recover the main part of his bridewealth but also to keep his paternal
right. The children will have to be offset by a number of cattle deducted
from the returned bridewealth; this deduction establishes him in full
paternal rights over them, though at the same time the return of the rest
of the cattle deprives him of any right to children borne by the woman
thereafter.
After cattle have been returned to the first husband, any other man
can give bridewealth for the woman and legitimize her children born
after the divorce. The two transactions are often simultaneous, the

1 See p. 59.
'Witchcraft is thought to be inherited by consanguinity, being transmitted from a mother
to her children of either sex.







GUSII BRIDEWEALTII LAW AND CUSTOM


father returning bridewealth to the first husband as soon as he has
received it from the second. The fact that nowadays a woman can have
legitimate children by her second husband inevitably weakens the tie
that bound her to the first. Elders even now maintain that a mother
will always return to the place where her first legitimate children live;
but the main sanction for her doing so has disappeared.


(c) Grounds for divorce. Divorce can be brought about by any of three acts :
desertion by the wife, expulsion by the husband, or removal of the wife
by her father. We shall deal with these three forms separately.

(i) Desertion by the wife. In any case of desertion by a wife the husband's
bridewealth rights are secure. It does not matter if he was entirely to
blame, for instance if she ran away in self-defence against his ill-
treatment. To this extent, he can practise any form of cruelty, short of
killing her outright, and still be secure of his rights.
If the deserting wife runs home to her parents, not to a lover, the
husband will probably be able to recover her on demand; but if she very
determinedly resists, family or local elders may be called in to decide
whether the husband ought not to be satisfied with the return of his
cattle instead of his wife. Nowadays such cases frequently find
their way to the Native Tribunals. An order for return of the cattle
instead of the wife would be thought justified in any of the following cases:

(1) If the husband or one of his co-wives had inflicted severe physical
injury (occasional or even regular beatings do not qualify under
this heading).
(2) If the husband repeatedly 'refused her food', i.e. would not eat
what she prepared (this is an insult or.an implicit accusation of
witchcraft, poisoning, etc.).
(3) If he or any of the co-wives was a reputed witch.
(4) If he was sexually impotent.
(5) If he did not build her a house in reasonable time.

It should be remembered that the wife has no legal power to insist
on divorce in these or any other cases. She can only represent the
position as strongly as possible and hope that the elders will support
her plea. She has other, more or less illegitimate weapons. She may
for instance force the issue-at the risk of magical retribution and
public ridicule-by cutting off her own marriage rings in defiance
of the elders. She may use a desperate kind of blackmail, threatening
to hang herself if she is forced back to a home she detests,-a threat
which here and there is actually carried out, leaving the family exposed
to the uncomfortable magical consequences of a suicide. Alternatively,
she can try 'insulting' her husband so outrageously that he in his turn







54 GUSII BRIDEWEALTH LAW AND CUSTOM

will not decently be able to keep her any longer: one device is to throw
human excrement into his face1.

(ii) Expulsion by the husband. Under the traditional law a husband who
drove away his wife had the same choice between cattle and children as
if she had deserted him. Elders of both families would be called to try
to make him take the woman.back; if he refused he would have to give
up all rights over her children as well as herself, and recover his entire
bridewealth.
A man would be thought justified in refusing to take back his wife
if she:
(1) was excessively insubordinate and refused to work for him or
prepare his food,
(2) made continual trouble in the homestead by plaguing his other
wives and children,
(3) was a reputed witch,
(4) repeatedly committed adultery,
(5) deserted him for another man.
Sterility in a wife was not and is not counted a sufficient reason for
a husband to insist on divorce. On the contrary: he will be forced to
keep her, unless there is some valid objection to her besides her
barrenness. Hence, although his claim to recovery of cattle would remain
intact if the barren wife herself wilfully deserted him, he forfeits all
right to the cattle if he drives her away of his own accord. This 'protec-
tion' of the barren wife is meant primarily as a protection of her father's
egesaku. It would be hard on them to have to return cattle for a woman
whom no other man will now want to marry; this would be a dead
loss. On the other hand, the husband's egesaku too would suffer an
unwarranted loss by giving up the full number of cattle for a wife who
cannot bring in any children; the return of a few cows is therefore a
reasonable compensation.
There is only one other case in which a husband loses his right to
recover cattle if he drives away his wife. This is the case of oborema,
that is, injury inflicted by a hard blow on a particular spot between the
shoulder-blades, or another spot on top of the skull. The Gusii say that
this 'makes the body go bad inside afterwards'. The husband who has
struck his wife such a blow must, if he wants divorce, call a native
surgeon to open up the back or the skull. If the surgeon finds that the
expected dire results have followed on the blow, the husband loses the
right to initiate divorce. 'You have defiled the woman, who now will
want to take her ?' Like the ruling in case of sterility, this rule is
primarily a protection of the woman's father's egesaku.
1 One category of semi-formal 'insult' which elders regard seriously is termed okoema.
Actions classed as okoema are commonly such as to indicate a wish for the other person's
death: e.g. a wife singing dirges as if she were widowed, or a husband preparing his own
food as if he had no wife.







GUSII BRIDEWEALTH LAW AND CUSTOM


(iii) Forcible divorce by wife's father. If a husband persistently refuses to
meet the lawful claims of his wife's father-e.g. if he refuses to replace
bridewealth cattle which have died-the father is justified in taking
back his daughter and returning the balance of the bridewealth. It is
important to note that this right is lost after the father has made the
enyangi ceremony for his daughter. Enyangi transfers the woman
completely to the husband's egesaku, and the father has no right there-
after to enforce his claims by recovering custody of her. This distinction
is observed alike by the elders and by the Native Tribunals.

(d) Divorceprocedure. Divorce proceedings nowadays usually take the form
of an alternative claim : the husband demands that either his wife or
his cattle be returned to him. It is for the elders to decide which of these
alternatives to enforce. The principles on which they are expected to decide
have already been outlined.
The option of giving a substitute wife instead of cattle is not supposed
to exist in the case of divorce. However, the case may ultimately be settled
in what amounts to the same way. If it drags on for long enough, and the
cattle cannot be raised, the debtor family are not precluded from giving
a girl to the creditor family in settlement of the debt.
Once the father has made up his mind to agree to the divorce and return
the bridewealth, the ease of recovery nowadays depends mainly on whether
the cattle had already been handed on to a third party. If they have not,
recovery should be comparatively easy. This is because until the first
bridewealth has been returned the father cannot properly marry his daughter
to anybody else. It has always been considered extremely reprehensible for
a father to be in possession at the same time of bridewealth paid by two
different men for one daughter of his; or, in Gusii terms, 'If the two lots of
cattle mix their dung in his yard, it is emuma (a sin inviting magical retribu-
tion), and it will bring a curse on (ogoturutumba) the woman'. Potential
suitors would be deterred from embarking on a marriage to which this curse.
attaches. Nowadays the receiving of two men's cattle for one girl is punishable
as 'cheating' under the Penal Code; traditionally it was supposed to brand
a man as a false, untrustworthy character (omorianyi).
If, however, the bridewealth had already been handed on to a third party
the husband will normally have to wait until his divorced wife re-marries;
the father ought then to pass the new bridewealth on to the creditor
immediately. Endless 'cases' may ensue if the woman does not re-marry in
a regular way but goes as 'chooser' (omobasi) to a man who can only pay a
few cattle for her; then the father is in a cleft stick. Accordingly, a woman
who wants a divorce often strengthens her plea by promising her father that
if he only consents to return the bridewealth to her present husband she
will 'not go to any man' but will stay quietly at home with her parents until
they arrange another marriage.
Particularly difficult cases sometimes arise when a father is trying to force
return of bridewealth on a husband who much prefers to bide his time and







56 GUSII BRIDEWEALTH LAW AND CUSTOM

so prolong his rights over the wife's childbearing potentialities. If she is
bearing children by another man the legal husband may have much to gain
and little to lose by refusing to accept return of his bridewealth; as long as
it is unreturned he will have his egesaku increased by no effort of his own.
There are other situations in which the husband and the father, being on
good terms, have conspired together to put off the return of bridewealth
indefinitely. Such cases, when the woman and her lover want divorce which
the husband and father combine to refuse, are often very bitterly contested.
Nowadays it may take a series of appeals to the higher courts before the
woman gets her freedom to re-marry even a lover who is able and willing
to pay cattle for her.












CHAPTER V


LEGAL IMPLICATIONS

OF THE BRIDEWEALTH TRANSFER


A. THE BRIDEWEALTH PRINCIPLE IN FAMILY LAW

i. Bridewealth and man's status
THE man on whose behalf bridewealth has been paid for a woman
acquires rights connected with her capacities for child-bearing and for
working : but whereas the right to her labour may be lost without compensa-
tion (e.g. if she deserts) the right to her children is enduring and incontro-
vertible. As has already been indicated, bridewealth payment serves to give
the husband a permanent status as father of the woman's children,-that is,
unless the bridewealth is returned to him or his heirs. It does not matter if
the woman is living with another man, either during the husband's lifetime
or after his death. The living together of man and wife, and their sharing
of the daily routine of the homestead, is regarded as a desirable and natural
consequence of marriage, but the bridewealth system as such does nothing
to secure it. It is the subsequent enyangi ceremony-not the bridewealth
mechanism-that provides the specific overt sanctions against desertion or
adultery on the wife's part. What the bridewealth mechanism as such is
mainly designed to protect is not exclusive right to that woman's society nor
even to her sexual enjoyment, but the exclusive right over her offspring.
In short we may say that bridewealth serves primarily to make men
fathers-enyangi makes them husbands. The primary function of bridewealth
payment is to secure a woman's house for a man's egesaku. We have now to
consider what this implies in practical terms.

(a) Children over whom rights can be claimed. The first time a woman is
married for bridewealth, any children she may already have are thereby
legitimized and belong to the husband's egesaku. Subsequently all her
children by whomever begotten belong to that egesaku until such time as he
or his heirs may recover bridewealth by way of divorce. As mentioned
before, traditional and modern practice differ regarding the legal right to
children in case of divorce. Nowadays a father may retain his children even
after divorcing their mother, on condition that some cows are offset from the
return of bridewealth.
Under the old divorce law it was possible for children to have at successive
times more than one jural father and impossible for a woman to have legitimate












CHAPTER V


LEGAL IMPLICATIONS

OF THE BRIDEWEALTH TRANSFER


A. THE BRIDEWEALTH PRINCIPLE IN FAMILY LAW

i. Bridewealth and man's status
THE man on whose behalf bridewealth has been paid for a woman
acquires rights connected with her capacities for child-bearing and for
working : but whereas the right to her labour may be lost without compensa-
tion (e.g. if she deserts) the right to her children is enduring and incontro-
vertible. As has already been indicated, bridewealth payment serves to give
the husband a permanent status as father of the woman's children,-that is,
unless the bridewealth is returned to him or his heirs. It does not matter if
the woman is living with another man, either during the husband's lifetime
or after his death. The living together of man and wife, and their sharing
of the daily routine of the homestead, is regarded as a desirable and natural
consequence of marriage, but the bridewealth system as such does nothing
to secure it. It is the subsequent enyangi ceremony-not the bridewealth
mechanism-that provides the specific overt sanctions against desertion or
adultery on the wife's part. What the bridewealth mechanism as such is
mainly designed to protect is not exclusive right to that woman's society nor
even to her sexual enjoyment, but the exclusive right over her offspring.
In short we may say that bridewealth serves primarily to make men
fathers-enyangi makes them husbands. The primary function of bridewealth
payment is to secure a woman's house for a man's egesaku. We have now to
consider what this implies in practical terms.

(a) Children over whom rights can be claimed. The first time a woman is
married for bridewealth, any children she may already have are thereby
legitimized and belong to the husband's egesaku. Subsequently all her
children by whomever begotten belong to that egesaku until such time as he
or his heirs may recover bridewealth by way of divorce. As mentioned
before, traditional and modern practice differ regarding the legal right to
children in case of divorce. Nowadays a father may retain his children even
after divorcing their mother, on condition that some cows are offset from the
return of bridewealth.
Under the old divorce law it was possible for children to have at successive
times more than one jural father and impossible for a woman to have legitimate







58 GUSII BRIDEWEALTH LAW AND CUSTOM

children by more than one man at a time. This is reversed under the present
law, which makes it practically impossible for children to change their legal
filiation, but allows a woman to have legitimate children in two places at
one time. If A's wife goes to live with B, A will normally recover his bride-
wealth at the same time as B pays new bridewealth; if the condition of
offsetting has been observed, A will then have the right to all the children
born before this transaction, and B to those born after it. There is not usually
any interregnum, because both A and his father-in-law are interested in
postponing the return of A's bridewealth until B is absolutely ready to pay
(A because he wants to prolong his paternal rights, and the father-in-law
because he does not want to be left without cattle). If by any chance there
is such an interregnum the children born during it are on the same footing
as those born to an unmarried girl : they can be legitimized by whoever pays
bridewealth for her.
A difficulty might seem to arise in the case of children conceived during
one marriage and born during another. This is obviated by Gusii observance
of the convention that no bridewealth transactions can be conducted in
connection with a woman who is pregnant. Gusii say that, as she is 'in
danger', her fate must be known for certain before cattle can be moved on
her account. Thus if a woman conceives a child by her husband A and then
leaves him for B, the birth of the child has to be awaited before either A can
recover cattle or B pay cattle. 'The woman has your spear, and the spear
may kill her'.
It will be convenient to summarize the status of children under the terms
used by the Gusii themselves:

(i) The 'born child' (omobiare, cf. okobiara, to give birth) : this describes
a child born in the ordinary way at the homestead of the husband after
the payment of bridewealth. The category includes the great majority
of legitimate children; but also those conceived in adultery, whose legal
status in no way differs from that of the former.

(ii) The 'adopted child' (omogore) artificially acquired for the house of an
otherwise sonless or childless mother. Such children are practically
always of alien origin, being kidnapped, captured or bought from non-
Gusii neighbours, or at most from another Gusii tribe. This enables
them to be completely absorbed into the adoptive family since there are
no competing ties of descent to bind them mystically to a different
lineage. Hence the adopted child is legally and ritually on exactly the
same footing as a 'born' child of the mother, though personal discrimina-
tion is always a latent possibility and tends to flare up at times of
disagreement.

(iii) 'Belly (i.e. pregnancy) of the house' (enda ye nyomba): this refers to
children borne by an unmarried girl who is still at home in her mother's
house. When a subsequent bridewealth payment has legitimized them







GUS11 BRIDEWEALTH LAW AND CUSTOM


their origin should gradually be forgotten, and they can grow up with
'father' and mother on exactly the same footing as the real 'born children.'
(iv) 'Swallowed thing' (ekemerwa) or 'brought thing' (ekerentane). This refers
to a child which has been brought into the home by its mother but is
still legally the child of another man. The unfortunate 'swallowed' child
is often reminded in moments of friction that 'you don't belong to us'.
As soon as it is old enough to act independently of its mother, it will
probably run back to the house of its 'proper' father where it has full
legal and ritual status. To taunt anyone with the epithet ekemerwa or
ekerentane is considered a fairly serious insult.
(v) 'Lineage of a girl' (egesaku kia omoiseke). There is a small residue of
children' for whom no legal paternity is ever established outside the
mother's own family group; e.g. those born to a girl who died before
anybody could marry her. These go by default (as it were) to the egesaku
of the mother's father, but are distinguished from the rest of the lineage
by the name 'lineage of a girl'. No slur seems to attach to egesaku kia
omoiseke of the second generation and onwards. In fact it appears that
such links are sometimes fabricated in order to justify genealogically
the presence of a strange group among a'host lineage. The 'lineage of
a girl' must of course, be distinguished from the ordinary 'sister's child'
(omoigwa) who has his allegiance elsewhere.

(b) Specific rights of the legal father:In traditional times the first right of
a father was the custody of his legitimate children. As a rule it was considered
better not to separate an infant from its mother before the age of weaning
(up to two years), but this scruple would not interfere with the pressing of
the father's claims if they were likely to be endangered by it. In modern times
both the Administration and the Missions have preferred on humanitarian
grounds to leave custody in case of divorce with the mother, without neces-
sarily affecting the ultimate legal rights of the father. This humaner compromise
would scarcely have been practicable in days when the boundaries
of the clan were also those of regular legal procedure.
Even to-day, the Tribunal elders of the old school like to use the new
resources of the Administration in support of the father's claim to custody.
If a woman has left her husband and no bridewealth has been recovered,
they may order that every child she afterwards bears must be seized by
askaris and brought home to its jural father. Elders of more modern outlook
will take into account the character of the father, especially his ability to
have the, children properly looked after, before awarding the custody to
him.
One of the main advantages of custody from the father's point of view is
that it gives him a pull on the mother too, by drawing her back to the place
where her children live. If the father is particularly 'cruel' she may stay
away until her eldest son is old enough to defend her when necessary; in
such cases she usually returns not to her former hut but to another which







60 GUSlI BRIDEWEALTH LAW AND CUSTOM

her son will build for her next to his own and at a little distance from the
father's cattle pen.
Apart from its use in drawing back the mother, this right of custody was
formerly the only effective guarantee of the father's other rights over his
children. Chief among these is still the right to the bridewealth received for
daughters, involving a corresponding obligation to provide bridewealth for
the sons. A related right is that of receiving compensation if any of the
children are killed. Apart from this the legal father is entitled to all the natural
advantages of being head of an egesaku. Its members should work with him,
fight with him, promote the fame of his lineage by their numbers and good
conduct, tend him in sickness, bury him when he dies, and thereafter make
the proper sacrifices to his spirit. Besides, to the Gusii, a numerous egesaku is
after all an end in itself; it is at a natural political advantage, and at the same
time holds possibilities of immortalizing its founder by developing into
a structural lineage group such as a clan.

(c) Attitude to jural and physical children. Even young and educated men
insist that legal paternity means more to them than physical paternity.
A man may be on excellent terms with his own children by another man's widow
or wife, but if any choice has to be made he is far more likely to side with
his own legal children even if they are not physically his.
The 'swallowed child' can be fairly sure his jural father will receive him as
kindly as or more kindly than his physical father, in spite of the fact that he
may have spent his whole life with the latter and never set eyes on the former.
A typical Gusii comment is : 'Why should I set store by my (physical) son ?
After all, he has his own father' (i.e. his jural father). The difference of
attitude is sometimes strikingly illustrated in a case where a widow has lived
for years with a 'bachelor', to all intents and purposes like his wife, bearing
all her children by him, working for him and sharing his life ; as soon as he
can get a wife of his own who bears him children that are legally his, the
children of the widow become relatively uninteresting to him. A Gusii
wants egesaku, not merely offspring.

(d) Posthumous rights of the bridewealth donor
(i) The position of the 'warmer of the house' (omosoi nyomba). When a
husband dies his widow has the possibility of 'divorcing' him, i.e. returning
to her own family and persuading them to pay back bridewealth to the
dead man's heirs. She could then be remarried to anyone outside her
late husband's clan, on payment of bridewealth in the regular way.
In practice it is very rare for any but a young childless widow to divorce
her dead husband. By far the greater number of widows them-
selves elect-or are (sometimes rather forcibly) persuaded-to stay
where they are, so as to be with their children and carry on their duties
as a member, of the dead husband's lineage. Indeed, as we shall see,
widowhood often marks a woman's entry into the enjoyment of more
freedom and influence than she has ever known before.








GUSII BRIDEWEALTH LAW AND CUSTOM


If she stays, a widow still capable of bearing children is obliged to
take an omosoi nyomba, 'warmer of the house'; that is, a 'husband' who
will continue to exploit her childbearing potentialities for the benefit of
his dead forerunner. It has already been mentioned how a sexually
impotent husband can select a 'warmer' to raise children for his wife.
The position of the man who takes over a widow is exactly the same.
The woman is not his wife, the children are not his children, the property
of the 'house' is not under his control; he acts solely in the interests of
the (dead) legal husband. The status of the 'warmer of the house'
throws particularly clear light on the fact that the fundamental meaning
of the bridewealth transaction is to secure the permanent right to the
woman's children.
The man in question may be selected by the widow herself, who
usually indicates her choice by beginning to send him cooked food as
soon as she is ritually cleansed after the husband's death. (This means
an interval of about six months to a year, terminated by the ceremony
,of 'turning over the things'.) It is open to a man to decline such an invita-
tion if he wishes. The man selected must be somebody within the
permitted kinship grades; i.e. he must be a real or classificatory1
'brother' of the husband (and therefore of the widow) not a real or
classificatory 'son' or 'father'; he must not be the youngest full-brother
if the dead husband was the eldest, nor vice versa, because he would
then be 'like a son' or 'like a father'. Within these limits the choice is
wide. For preference a widow should select a man descended from the
same father or grandfather as her dead husband, but if she has strong
views she is at liberty to pass dver all the close relatives and choose any
other man of the clan. She could even choose someone of a different
clan altogether, but in that case the relatives would insist on his coming
to live among them where they can keep an eye on him. Clearly, the
point is not so much to choose a man related by real or supposed ties
of kinship, but to choose one whose residence within the politically
effective group will prevent his usurping any rights that belong to
the husband's heirs.
The 'warmer of the house', if he is already married, will be expected
to do no more than visit the widow from time to time at her late husband's
home, and to help her with the 'man's work' such as building and bush-
clearing. But if the widow has no grown children and is afraid of living
alone she is justified in moving over to live at his homestead ; alternative-
ly, if he is a bachelor and wants home comforts, he can move over
to her place. It is in these cases, where the couple to all appearances
live together as husband and wife, that the gap between legal and social
realities is most marked. Old men warn their juniors of the fallacy of
finding happiness with a widow. The bachelor 'warmer' of a widow's
house may enjoy her society, live on her grain and her cattle, and watch
1 The classificatory kinship terms are used throughout the exogamous clan : with few
exceptions a wife follows the terminology used by her husband.








GUSII BRIDEWEALTH LAW AND CUSTOM


his offspring by her growing up in the joint home; but in the end he
will have to hand over everything to her dead husband's heirs, and the
very sons whom she bore by him can strip him of everything.
The man who occupies such a position may reasonably expect that
the widow will lend him cattle of her house for purposes of his own
marriage, but he has no redress if she refuses, and in any case he cannot
escape repayment to her sons. His chief hope lies in acquiring 'cattle
of saving' (chiombe chia'nibo) with her help. He can then marry without
establishing any debt; or if he lends them to the widow's sons, he or
his heirs can claim them back later (which would not- lave been the
case had the lender been the jural father).
Naturally, if the deceased has left no sons and the 'warmer of the
house' happens to be the nearest heir (e.g. full-brother), his begetting
sons by the widow will amount to deliberately cutting himself out of
the inheritance. But the heir has no choice in the matter. The widow
can on no account be denied the chance to raise sons for the deceased
if the heir himself does not help her, somebody else will. The fundamental:
right of the deceased to raise his posthumous egesaku is something that
no Gusii would dare to call in question.
(ii) The fictitious second-generation egesaku. The process of founding an
egesaku entails more than the right to all children begotten by the
founder's widow. Even a childless man whose widows are all past
childbearing can eventually achieve the satisfaction of a posthumous
egesaku provided that the essential bridewealth is.available.
A sonless widow can acquire by payment of bridewealth a marriage-
able girl whom she brings home with her. A suitable young man-often
an impoverished nephew-is then chosen to live with the girl as husband.
The couple may indeed be made husband and wife by the solemnization
of enyangi but the children of the union are nevertheless members of
the egesaku of the widow-i.e. of the deceased : they do not belong to
the egesaku of their physical father. Such children are jural grandchildren
of the deceased, legitimized by the bridewealth which 'he' (i.e. his
widow) provided to bring their mother into the family. The girl herself
has the status of a wife of some imagined son of the widow. If her
young 'husband' dies then she ranks as any other widow of the family
and if she herself dies or deserts, it is the old woman who will reclaim
the bridewealth on behalf of the house.'

2. Bridewealth and woman's status
The effect of bridewealth payment on a woman's status is that it shifts
the emphasis from her membership of a house in her father's egesaku, to
her new position as foundress of a house in her husband's egesaku. But

1 In rare cases, the procedure I have just outlined for old women is followed by an old
man-a widower who feels himself past remarrying and raising children for himself.








GUSII BRIDEWEALTH LAW AND CUSTOM


though from this time onwards all her children will belong unequivocally
to the husband's egesaku, not until the enyangi ceremony is the woman herself
ceremonially and finally cut off from her paternal egesaku. Until then her
position within the husband's egesaku remains somewhat equivocal. We may
parallel what has already been said of the man and say that bridewealth
primarily makes women mothers whereas enyangi makes them wives.
The legal position of a woman for whom bridewealth has been paid is
definable rather in terms of duties and restrictions than in terms of rights.
She is indeed entitled to ask for divorce if persistently ill-treated or in-
sulted but she has little personal liberty, no right of property, traditionally
no claim against the husband for the custody of her own children (even if
they are not physically his), and no power to restrain him from cruelty
towards herself or from adultery.
Yet this does not give a true picture of the legal position of a Gusii wife
and mother, still less of the social reality of her status. In herself she may
be legally a 'minor', but in her capacity as head and focus of a house she
holds a position of considerable importance. Just as the person of the husband
unites the whole egesaku of which he is the head-including all the houses of
his various wives-so does the person of each wife unite the house founded
by her. The fundamental significance of the house in Gusii law, and the
extent to which it functions as an independent unit, has already been indicated.
It is the unit which acquires and holds property in cattle, which lends and
inherits, which can never forfeit a claim or repudiate a debt. When the death
of the husband snaps the personal bond and emphasizes the autonomy of
the houses, the wife correspondingly finds her status enhanced; she now
becomes representative and trustee for her house.
Every house is said to comprise or to possess its own 'live property', its
etugo (cf. ogotuga, to feed or rear), that is, its wealth in terms of living
creatures-human progeny, cattle, goats and other domestic creatures.
Even while the husband is alive the property is loosely said to 'belong' to
the wife. They are in some sense her children, her cattle, her goats, though
of course the overriding right in all of them rests with the husband who has
given bridewealth for the acquisition of the woman and everything she may
produce. Even when the husband is alive, a wife may resist, in the interests
of her house, attempts that he may make to 'lend' some of its property to
another house. After the husband's death, the property (and in recent times
the land) of each house is finally secured to it, and there is nobody with a
right of forcing a transfer. The widow's control over the property of her
house becomes at once more extensive and better defined. It approximates,
in fact, to the rights formerly enjoyed by the husband. She cannot deny any
son his proper share of bridewealth when he is ready tb make use of it;
but within these limits, and as long as she safeguards the interest of the
direct heirs, she can do to some extent as she pleases, making or refusing
loans to any man of the family. Often a widow with no warmer of the house
and no grown son to help her will specially patronize some young man of
the husband's near paternal kin who 'comes to work for her like a son'; she








64 GUSII BRIDEWEALTH LAW AND CUSTOM

can lend him as many cattle as she likes, but (unless she has no sons and he
is the next heir) cannot make them over to him for good.
It is significant of the woman's position as head of her house that neither
the land nor the cattle of that house may be formally divided out between
heirs while she is alive. Thus until a sonless widow dies the brothers of her
husband who are going to inherit from him cannot make permanent bound-
aries between their fields ; they will say 'all the land belongs to her, she only
lends us portions to cultivate'. The same applies to cattle. If there are no
sons and the dead man's property is to be divided between brothers or
other heirs, no division can take place till the widow dies.
As trustee for her late husband's rights in her house, the widow has the
first duty of seeing to the increase of his egesaku. It is up to her to
choose-within certain limits-her own warmer of the house if she is still
capable of bearing children ; otherwise, and if she has no sons, it is she who
takes the necessary steps to acquire fictitious 'grandchildren' for the deceased.
Secondly, the widow is a sort of trustee over the property of her house, until
such time as a son can take over her duties. Besides supervising the lending
and borrowing of both cattle and land she may act as litigant in any cause
affecting the interests of the' house. If any of these functions are discharged
by the warmer of the house or by someone of the kin of the deceased, he
may be acting in the capacity of adviser and support to the widow but not,
usually, as full legal representative of the deceased.

3. Bridewealth and child's status
We have seen how bridewealth payment determines legitimate filiation,
i.e. the child's membership of its father's egesaku and its mother's house.
It remains to be shown what this actually means, in concrete terms, for the
status of the child.
In Gusii society, organized as it is into a hierarchy of patrilineal descent
groups, legal filiation to the father constitutes perhaps the most important
single determinant of social position. To begin with, it binds son to father
by a network of legal and economic ties ; it alone can confer the right to
a marriage portion and to a share in the heritable patrimony, since neither
of them can be claimed anywhere outside the rightful egesaku. Further-
more, it creates an inescapable mystical nexus that binds man to the spirits
of his legal (not necessarily his physical) ancestors in the male line.
Associated with this cardinal importance of the egesaku in the spirit cult is
the fact that succession to most ritual or magical powers and offices passes
in the same line.
Legitimate filiation to the mother-i.e. membership of a house-is
important principally in the sphere of cattle holding, as already described,
and of inheritance which we now have to discuss.








65


GUSII BRIDEWEALTH LAW AND CUSTOM


B. THE BRIDEWEALTH PRINCIPLE IN THE LAW OF INHERITANCE

Gusii bridewealth law and inheritance law are bound up together, not
merely because cattle and goats are traditionally the main form of heritable
asset, but also because the principles which govern bridewealth allocation
are practically the same as those which govern inheritance. The laws of
inheritance are in fact no more than an extension of what have already been
called the rules of priority in allotting bridewealth ; the death of the husband
and father merely imposes rigidity on arrangements that within limits could
be modified by him while he lived.
The traditional law of inheritance (omwando, pl. emiando) was concerned
solely with rights to wealth in the form of livestock, whether actual flocks
and herds or potential bridewealth of children. Personal belongings were not
shared out according to the same rules bui in conformity with other
kinship principles, while the inheritance of land is still a novel concept,
with rules being slowly fashioned by the day-to-day judgments of tribunals
and home elders. Like the bridewealth law itself, the law regulating inherit-
ance is based on the principle that the function of cattle is to establish the
egesaku.
The laws of inheritance govern allotment between houses, i.e. how a man's
assets are to be distributed between the houses of different wives, and
what happens to the assets of a house that dies out. They also govern divi-
sion between individuals, i.e. how the members of one house share out the
assets which descend to them jointly. A Gusii never inherits merely as
relative of so-and-so, but always as a member of a house. The question of
allotment between houses is considered the more important of the two.


i. Allotment between houses
The property rights of a house as secured to it on the death of the husband
and father correspond exactly to the rights which it had during the father's
lifetime. Each house is entitled to its own cattle of daughters, its own cattle
of saving (i.e. those produced by its own members) and any animals 'tied for'
it by the father while he was alive.1 There remains the question of dividing
the father's personal unallotted cattle of saving, if any. The youngest house,
as we have seen, was always supposed to have a prior right to these, on the
basis of a supposed greater need. But if there is actually no special need in
any one house the cattle of saving are usually divided equally between all
the houses with a bias in favour of the first house. 'The sons of the first wife
are to have most because she is his great wife and clearer of the ash (omo-
gucharibu, an epithet for the first wife who first tidied up the former bachelor's


1 See p. 30.








66 GUSII BRIDEWEALTH LAW AND CUSTOM

hut), who helped him to get rich, who cooked for him and worked in his
gardens. She helped him to get the cattle lcecause she produced so much
grain and also took care of everything when he went out cattle-raiding.'1
When a house dies out, the first heir is the 'linked house'-the one which
has always had a preferential claim on its assistance ; if three houses had
been linked the surviving two would divide the property of the extinct one.
There may however be no linked house within this particular egesaku. the
household may have been monogamous. In this case the successor will be
a house of the egesaku of next higher order-one that shares with the extinct
one the nearest possible direct female ancestor. Thus, if A, a monogamist,
dies without direct male descendants, his whole property passes to a house of
his father's egesaku, being the house that had A's mother as ancestress-
i.e. consisting of A's full-brothers. Failing this, inheritance reverts to another
house sharing the nearest possible male ancestor, i.e. A's father; that is, it
passes to the house consisting of A's half-brothers, if possible the 'linked'
one. The alternation of male and female links persists indefinitely. Thus the
next heir would be the house having A's father's mother as common ancestress,
i.e. A's full paternal uncles; next after that, the one having A's father's
father as common ancestor, i.e. A's paternal half-uncles (of the linked house
if possible).
The inheritance laws of this predominantly patrilineal society are there-
fore pervaded by quasi-matrilineal ideas, based on the concept of the
unity of the house. This conception in its turn depends on the principles of
bridewealth, for, as we have seen, the identity of the house is determined
solely by bridewealth payments. One bridewealth payment means one house
even if the children have more than one mother (as in the case of the substitute
wife) or more than one father (as in the case of posthumous and illegitimate
children); two bridewealth payments mean two houses, even if the mother-
once widowed or divorced-is the same woman.

2. Division within the house
The part of inheritance law that regulates division (between members of
the same house) is not so directly determined by the law of bridewealth,
but is relevant here in so far as it concerns the sharing out of potential
bridewealth. Here again, nothing fundamental is altered by the father's
death. The rules governing allotment of daughter's bridewealth are those
already stated in Chapter III, and the only difference is that when the father
can no longer enforce them this task passes to his brothers, his eldest son,
or other responsible elders of the family. The division of cattle of saving
will follow much the same lines as their allotment between houses : the

1 In actual cases of division of a father's personal cattle one sees vacillations between the
intention to follow these principles blindly as binding rules, and the tendency to treat them
merely as guides that can be overruled on equitable grounds. For instance the youngest house
may claim the largest share even though it has a surplus of daughters and no real need at
all, whereas in other cases a pressing need in any other house overrides the right of the
youngest. In general it may be said that'needs usually determine the ultimate division.








GUSII BRIDEWEALTH LAW AND CUSTOM 67

youngest is supposed to deserve more on grounds of speical need, but if
there is actually no special need there may be an equal division with only
a bias in favour of the eldest.
In contrastto the precision with which it regulates the order of inheritance
between houses, Gusii law is vague about the individual division. When a
man dies without direct male heirs it is perfectly clear which house must
inherit his property, but the subsequent share-out is left more or less to the
agreement of the parties themselves. Thus if A dies without direct male heirs
the law will be clear in awarding all his cattle and goats to his full-brothers
B and C, but whether B or C gets the lion's share will depend on considera-
tions of equity, i.e. on who most needs help to found his egesaku. If B, for
instance, has a wife and C has not, C will probably be allowed to use the
whole/inheritance of A-subject to a vague obligation to give something back
to B if and when he can.
If the father of the co-wives is not alive, the eldest co-heir takes his place
in supervising the division. In practice the eldest co-heir takes possession
of the whole inheritance himself and then hands out the agreed portions to
the younger brothers.







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