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close this bookWomen and the 1995 Constitution of Uganda (Ministry of Gender, Labor and Social Development - Uganda - WIDDANDA, 1995, 22 p.)
View the document(introduction...)
View the documentCHAPTER ONE. INTRODUCTION
View the documentCHAPTER TWO. PROVISIONS CONCERNING WOMEN IN THE CONSTITUTION
View the documentCHAPTER THREE. CRITICAL AREAS FOR REFORM
View the documentCHAPTER FOUR. PRIORITIES FOR ACTION - KEY ACTORS
View the documentCONCLUSION

CHAPTER THREE. CRITICAL AREAS FOR REFORM

3.1 To bring the laws of Uganda in line with the provisions of the Constitution, as regards equality between men and women, the following laws, among others, will have to be amended or repealed.

3.2. Penal laws

In the Constitution a child is defined as a person under 18 years of age. This definition is also used in the International Conventions on the Rights of the Child, This provision now makes it illegal for a girl or a boy to be married when he/she is under 18 years of age. It is now clear that parental consent to marriage of a person under 18 years of age will be illegal.

3.3 However the law against defilement endorses customary marriage of girls under 18 years of age as legal. The law needs to be amended because it contradicts the Constitution.

3.4. Adultery

According to the Penal, Code, Adultery is a criminal offence which is committed when a man has sexual intercourse with a married woman, not being his wife.

3.5 It further states that the offence of adultery is committed, in the case of a married woman when she has sexual intercourse with any man not being her husband. These two provisions have now become contrary to the Constitution because they are discriminative in that a man only commits adultery when he has sexual relations with a married woman; whereas a woman commits adultery when she has sexual relations with any man.

3.6 Furthermore, only the husband petitioner is empowered to make the alleged adultress a correspondent. This is unfair to the woman who cannot make the alleged adultress a corespondent. This section should be amended to enable a woman make the adultress a correspondent.

3.7 This contradicts the provision of the Constitution which states that laws, customs, tradition, cultures which are against the welfare of women or which undermine their dignity and status are prohibited.

3.8 In most countries, adultery is a matrimonial offence and not a criminal offence. Now that the Constitution stipulates that men and women are equal and shall be treated as equal, adultery, if it has to remain a criminal offence must be committed under the same circumstances for both men and women.

3.9 The offence of adultery should either be abolished in the penal Code or if retained should be defined as an offence of extra marital sexual relationship as regards married persons.

3.10 Moreover, the fact that a man who commits adultery with a married woman has to pay compensation to her husband whereas a woman who commits adultery with a married man does not pay compensation to man’s wife is discriminatory in its provision and effects and not in line with the new Constitution.

3.11 This provision reduces a woman to the position of her husband’s property and as such he alone should be compensated for the damage occasioned to if.

3.12 Family law or the laws of domestic relations

In the Statute books of Uganda there are five marriage laws. The following are the laws governing marriage in Uganda:

1. The Marriage Act Cap. 211 Laws of Uganda.
2. The marriage of Africans Act cap. 212. Law of Uganda.
3. The marriage and Divorce of Mohammedan Act. Cap. 213 Laws of Uganda.
4. The Hindu Marriage and Divorce Act. Cap. 214 Laws of Uganda.
5. The customary Marriage (Registration) Decree 16/1973.

This law makes provision for registration of customary marriages and matters regarding age, parental consent etc. but does not tackle the essence and substance of customary marriages because these depend on the culture of the different nationalities.

3.13 Marriage

Marriage is usually understood to mean a Union between a man and a woman. Although there are five marriage laws there actually two types of marriages. Polygamous and monogamous marriages.

3.14 In a polygamous marriage there are two types of marriages, those under customary law and those under Islamic laws. A polygamous marriage is one where a man can marry more that one wife. A customary marriage between a man and woman is potentially polygamous i.e. it is understood from the beginning that a man may choose to marry other women during the subsistence of his first marriage, i.e. when he is married to and living with his first wife. There is no legal limit to the number of wives a man may marry under customary marriage.


Polygamous and monogamous marriages.

3.15 In Uganda, a customary marriage is recognized as legal only when all the customary practices e.g. payment of dowry etc. have been complied with. Marriage according to Islamic Sharia law is polygamous but limited to your wives.

3.16 Polygamy today is undesirable because it exposes a woman to the danger of STDs including AIDS. The economic situation in Uganda today makes it impossible for a man to take proper care of many wives and children. This is also contrary to the Constitutional provision which prohibits all customs and practices that are against the dignity and well-being of women. In a polygamous situation there is inequality between the married persons. Women who are co-wives cannot be equal to the man who has married them.

3.17 Cohabitation

There are too many types of marriages in Uganda but living together without marriage ceremony of a man and a woman is not marriage however long it takes or how ever many the children the pair have.

3.18 The law has to be clear about the status of women who live with men for years without being married in the conventional sense, both statutorily and customarily. Given the facts that the Constitution acclaims the Family as a natural and basic unit of society, it is imperative that there should be one coherent and equitable law governing such an integral unit of society. The different laws of marriage are contradictory and outdated. The age of marriage is not uniform in each of the marriage laws. The Customary Marriage (Registration) Decree discriminates between the indigenous tribes of Uganda and non-indigenous persons.

A non indigenous person must be at least 21 years of age to marry and indigenous Ugandans must be 18 years old in the case of a male and 16 years old in the case of a female. Now that a child is defined as a person who is under 18 years of age, will parental consent validate a marriage of children under 18 years of age? The legislature must address the issue of parental consent to marriage of children under 18 years of age.

3.19 Bride price

Laws, cultures, customs or traditions which are against the dignity, welfare or Interest of women or which undermines their status, are prohibited by this constitution.


The payment of bride price for a woman causes imbalances in the relationship between man and woman because the woman feels she has been bought.

3.20 According to the common law of Uganda, as decided by the Courts, a customary marriage is not legal until all the customary or cultural obligations which pertain to marriage are complied with according to the customary marriage cultural practices of the woman. The parents and relatives of the woman have to recognize the marriage according to their culture. If the relative of the woman do not wish to receive dowry for her, then a clear declaration has to be made stating so and also stating that they recognize the relationship between the man and woman as marriage. Even where only half of the bride price has been paid, the relationship is rot recognized as marriage until all cultural demands have been met by the man.

3.21 The payment of bride price for a woman, does not make for the equality between a man and a woman. The payment of bride price for a woman causes imbalances in the relationship between man and woman because the woman feels she has been bought. Moreover, the fact that bride price is to be repaid in the event of divorce has caused untold mental and physical suffering to women whose parents are dead or whose relatives cannot repay the bride price. This situation has forced some women to stay in impossible relationships to the detriment of their physical and mental health

3.22 If gifts are to be exchanged between the families of the man and woman, then it should be voluntary and nonrefundable. The law must look critically on the issue of bride price and do away with it if the equality between men and women provided for in the Constitution is to be a reality.

3.23 No doubt, our forbearers had good reasons to have instituted payment of bride price but it has been converted into a barter trade. Women are victimized by relatives in law because of bride price having been paid for them. Custom demands that a woman for whom dowry is paid should be inherited by a member of me husband’s clan on the death of her husband. If she refuses to be inherited, she will most likely be told to refund the bride price, and leave the home she and her husband made together. Her children will be taken away from her by the clan.

3.24 Ownership of property under customary law

It is a well known practice that in most parts of Uganda that women cannot customarily own or acquire land or property. This is contrary to the Constitution that provides for equality between men and women and allows every person the right to own property.

3.25 A large part of Uganda land is customarily held and many people still value traditional/cultural value that oppress women. Again the right to practice one’s culture should not in any way infringe on the rights of another.

3.26 Divorce

Divorce is a termination of marriage according to the Law. The law specifies on what grounds a person may petition for Divorce. Sharia law has a different form of Divorce from the laws of Divorce of Uganda.

3.27 A person who is married under customary law may divorce under customary law. The grounds for divorce under customary law differ from tribe to tribe. According to the law of Divorce in Uganda a Man has only one ground for divorcing a wife and that is:- Adultery

3.28 A wife on the other hand must have two grounds i.e. Adultery coupled with desertion, cruelty or change of religion. This last one is antiquated in the light of mixed marriages between Christians and other religious denominations. It does not encourage denominational harmony and coexistence.

3.29 The Act further discriminates against women when a marriage has been dissolved or judicial separation granted because of the adulterous act of the woman. If she owns any property the Court may order the whole or any part of such property to be settled for the benefit of the husband or of the children of the marriage or of both. A similar provision does not exist for adulterous men.

This is contrary to the provisions in the Constitution which allow a woman to own her own property, and makes men and women equal. This provision should be amended. If this provision in the law of Divorce is to be retained, then the woman whose husband has committed adultery which leads to divorce should also have her husband’s property settled for the benefit of her and the children, if any.

3.30 Since the Constitution has recognized the equality of men and women, the laws must have the same ground for divorce. Divorce should be granted on any of these grounds:

1.

Incompatibility which cannot be bridged




Irretrievable breakdown of marital relationship



2.

Sexual perversion



3.

Physical and/or Mental cruelty



4.

Desertion for up to one year



5.

Adultery



6.

Willful neglect of a spouse



7.

Any other reasonable cause


Divorce should be granted on grounds e.g. Physical and/or Mental cruelty

3.31 The Constituation also states that: “It is the natural right of parents to care for and bring up their children”. This provision emphasizes the responsibility of both parents for looking after their children. It follows therefore that the law regarding maintenance of children should make provision for a substantive amount of money to cater not only for a child’s day to day maintenance but his/her education for an integrated personality. The order of maintenance of children is especially necessary where the parents are separated or divorced.

3.32 In the case of separation or divorce the taw must be clear as to the custody of children and visitation rights of the parents who does not have custody.


Figure

3.33 Separated or divorced parents have in many cases used custody of the children to deny the other parent the right of access to or communication with, the children. The law must take note of and be clear on the imperative emotional need of children for the love of both their parents.

3.34 Many women who have divorced or separated from their spouses have gone through agonies of longing for their children whom they had been forbidden, by the espouses, to see. There has to be an all out education of parents-especially separated or divorced parents not to use children as weapons for punishing each other. Children are the innocent victims of separation or divorce of parents, the law must protect and guard children from unnecessary emotional and mental suffering.

It is therefore imperative for the law in favour of children or the family to be framed in a way that protects them as innocent victims of social disorder. It should be possible for a spouse who is denied access to his/her child by the other spouse to go to court and seek for an order of access. Where there is an order for access, the spouse breaching or denying it should be heavily fined or even imprisoned. The right of access should be exercised in the best interest and welfare of the child. Access should not be emotionally or physically disruptive to the child.


Figure

3.35 The law of inheritance

As the law stands now, the law of inheritance needs to be carefully scrutinised in order to have a deceased person’s property equitably distributed between dependents left behind.


Figure

3.36 The present distribution of property of a person who dies intestate i.e. without making a will is not fair. The distribution of property should be 50% to the living spouse and 50% to the children of the deceased spouse.

3.37 The legal definition of wife has been obscured by every concubine of woman who has had a child with a man without being married to him. These women are called “wives”. The law ought to define the term wife very clearly. The loose way in which the terms wife and husband has been used has led to a lot of bitter feelings among family members who could otherwise have been very close. Fighting among the “wives” and children has left very sour feelings against the memory of many men.

3.38 It is being suggested that intensive education needs to be carried out among our people to make wills clearly indicating how their properties should be distributed after their death.

3.39 FIDA, The Uganda Women Lawyers’ Association, The National Association of Women’s Organization in Uganda (NAWOU), ACFODE, members of Parliament, Government, and the Administrator General’s Office should educate the people on the writing of wills.

3.40 Secondly, the Law against intermeddling with the property of the deceased, i.e. interfering with the property by appropriating it, transferring it or dealing with it in any other way which affects the property, is a law which is not enforced at all in Uganda. The RCs, the Chiefs, Community leaders and the Government should ensure that property of the deceased is not interfered with before it is distributed according to the law. The penalty for breaking this law should be very heavy, including confiscating the property of the intermeddler, imprisonment and/or imposing very heavy fine.


The law ought to define the term wife very clearly.

3.41 Guardianship of Children

The law provides that when a husband dies guardianship automatically is given to the father in law or brothers in law of male relatives of the husband in spite of the mother being alive and well. The law should be amended to clearly provide that a mother is the first guardian of her child.

3.42 Female Circumcision

Female genital mutilation (female circumcision) is another practice that greatly undermines the dignity, welfare and interest of women. It is a practice that should be done away with because it serves no medical purpose, It only ensures that a girl or woman would not enjoy physical intimacy which is the right of both men and women.