The prohibition of discrimination and the workers’ right to maternity or paternity leave in light of the drafting history of Article 40 of the Constitution of Uganda and sections 56 and 57 of the Employment Act
| Published date | 01 September 2024 |
| DOI | http://doi.org/10.1177/13582291241267005 |
| Author | Jamil D Mujuzi |
| Date | 01 September 2024 |
Article
International Journal of
Discrimination and the Law
2024, Vol. 24(3) 143–168
© The Author(s) 2024
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DOI: 10.1177/13582291241267005
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The prohibition of
discrimination and the workers’
right to maternity or paternity
leave in light of the drafting
history of Article 40 of the
Constitution of Uganda and
sections 56 and 57 of the
Employment Act
Jamil D Mujuzi
Abstract
Workers’rights are provided for under Article 40 of the Constitution (1995) and in other
pieces of legislation. Sections 56 and 57 of the Employment Act (2006) (the Act) provide
for the rights to maternity leave and paternity leave respectively. Section 56(1) of the Act
provides that ‘[a] female employee shall, as a consequence of pregnancy have the right’to
maternity leave as a result of ‘child birth or miscarriage.’On the other hand, section 57(1)
of the Act provides ‘[a] male employee shall, immediately after the delivery or miscarriage
of a wife, have the right to’paternity leave. It is evident that under section 56, for a female
employee to qualify for maternity leave, she doesn’t have to be married. However, for a
male employee to qualify for paternity leave, he has to be married. The reason for this is
explained in the drafting history of section 57. It is argued that this amounts to dis-
crimination on the ground of marital status. It is also argued that section 56(1) is only
applicable to biological mothers and excludes adoptive mothers, commissioning parents
(in cases of surrogacy) and those who have committed abortion. This is also discrimi-
natory but could be justified in the case of commissioning parents, adoptive parents and
those who have committed abortion.
Department of Criminal Justice and Procedure, Faculty of Law, University ofthe Western Cape, Bellville, South
Africa
Corresponding author:
Jamil D Mujuzi, Department of Criminal Justice and Procedure, Faculty of Law, University of the Western Cape,
Private Bag X 17, Robert Sobukwe Road, Bellville 7535, South Africa.
Email: djmujuzi@gmail.com
Keywords
Uganda, paternity leave, maternity leave, workers’rights, Employment Act, Article 40 of
the Constitution
Introduction
In Uganda, workers’rights can be divided into two broad categories: constitutional rights
and statutory rights. Constitutional rights are provided for under Article 40 of the
Constitution (which is reproduced below). Statutory rights are provided for in different
pieces of legislation
1
which include the Employment Act (2006) (the Act).
2
The Act
‘operationalises’some of the rights that are included in the Constitution (for example, the
right to maternity leave), those which are not provided for in the Constitution (for ex-
ample, the right to paternity leave) and those which are provided for in some of the
international labour conventions to which Uganda is party. Article 40(4) of the Con-
stitution provides that ‘[t]he employer of every woman worker shall accord her protection
during pregnancy and after birth, in accordance with the law.’The drafting history of
Article 40 shows that the provision was meant to require employers to provide maternity
leave. Article 40(4) is operationalised by section 56 of the Act. Section 56(1) of the Act
provides that ‘[a] female employee shall, as a consequence of pregnancy have the right’to
maternity leave as a result of ‘child birth or miscarriage.’Section 57(1) of the Act provides
‘[a] male employee shall, immediately after the delivery or miscarriage of a wife, have the
right to’paternity leave. In this article, the author takes a look at the drafting history of
Article 40 generally to indicate the reasoning behind its inclusion in the Constitution. It is
in this context that the drafting history of Article 40(4) is also situated. The author il-
lustrates the drafting history of sections 56 and 57 of the Act. This history is important to
demonstrate how these provisions should be interpreted. A combined reading ofthe
drafting history of Article 40(4) and section 56 of the Act shows, inter alia, that for a
woman to qualify for maternity leave, she does not have to be married. This history also
creates room for the argument that maternity leave is only applicable to biological
mothers. A study by Blum et al. on behalf of the International Network on Leave Policies
and Research shows, inter alia, that in many countries, adoptive parents, commissioning
parents (in case of surrogacy agreements) and those who have terminated their preg-
nancies (abortion) have a right to maternity leave.
3
However, in Uganda, the right to
maternity leave does not extend to adoptive mothers, commissioning parents (in cases of
surrogacy agreements) and to those who have committed abortion. This raises the
question of whether this does not amount to discrimination against non-biological parents
and those who have committed abortion. The author argues that it amounts to differential
treatment. However, this treatment can be justified. Under section 57, a man can only get
paternity leave if his wife gives birth or had a miscarriage. However, the Act does not
define the term ‘wife.’During the second reading of the Employment Bill,
4
legislators
disagreed on whether a man had a right to paternity leave if he is not married to the woman
he impregnated. The legislators were divided on this issue and agreed to leave it in the
hands of the ‘courts’to determine. It is argued that since Ugandan law does not recognise
144 International Journal of Discrimination and the Law 24(3)
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