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TOWARDS NON-DISCRIMINATION AGAINSTWOMEN AND DE JURE EQUALITY IN UGANDA: THE ROLE OF UGANDA'S CONSTITUTIONAL COURT

Document Cited authorities 5 Cited in Related
Vincent
Published date01 March 2008
DOI10.3366/E0954889008000042
Pages1-34
AuthorMANISULI SSENYONJO
Date01 March 2008
INTRODUCTION

The principles of equality and non-discrimination represent the twin pillars or the cornerstone upon which the whole edifice of human rights law is established.1

See E. Heinze, The Logic of Equality: A Formal Analysis of Non-Discrimination, Ashgate (2003); A. McColgan, ‘Principles of Equality and Protection from Discrimination in International Human Rights Law’, 2 European Human Rights Law Review (2003) 157–175; M. MacEwen, Comparative Non-Discrimination Law: An Overview, in T. Loenen & P. Rodrigues (eds), Non-Discrimination Law: Comparative Perspectives, Kluwer Law International (1999) 427–435.

At least every State in the world today is a party to a human rights treaty prohibiting discrimination on the basis of sex and/or protecting equality between men and women.2

See Office of the United Nations High Commissioner for Human Rights, Status of Ratifications of the Principal International Human Rights Treaties as of 16 June 2006, at http://www.ohchr.org/english/bodies/docs/RatificationStatus.pdf.

 Despite this fact inequality and discrimination remain two major impediments to the enjoyment of human rights of women. Discrimination against women on the basis of sex denies or limits as it does their equality with men, and is ‘fundamentally unjust’ since it violates the principles of equality of rights and respect for human dignity.3

Declaration on the Elimination of Violence against Women G.A. res. 48/104, 48 U.N. GAOR Supp. (No. 49) at 217, U.N. Doc. A/48/49 (1993), Art. 1.

 It is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their States, hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women.4

Convention on the Elimination of Discrimination against Women (CEDAW), U.N. Doc. A/34/46, preamble, para. 7.

 International human rights instruments such as Article 3 of the International Covenant on Civil and Political Rights (ICCPR)5

999 U.N.T.S. 171, entered into force for Uganda on 21 September 1995.

 and Article 3 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)6

993 U.N.T.S. 3, entered into force for Uganda on 21 April 1987.

 underline commitment to sexual equality in the enjoyment of all civil and political rights, as well as economic, social and cultural rights. Similarly, Article 2 and 3 of the African Charter on Human and Peoples’ Rights (ACHPR) prohibit discrimination and protect equality before the law.7

Adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 October 1986. Art. 2 provides: ‘Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status’. Art. 3 stipulates: ‘1. Every individual shall be equal before the law. 2. Every individual shall be entitled to equal protection of the law’.

 This demands de jure (or formal) equality and de facto (or substantive) equality for men and women.8

Committee on Economic, Social and Cultural Rights (CESCR), General Comment 16, E/C.12/2005/4, (2005), para. 7.

 Formal equality assumes that equality is achieved if a law or policy treats men and women in a neutral manner.9

Ibid.

 Substantive equality is concerned, in addition, with the effects of laws, policies and practices and with ensuring that they do not maintain, but rather alleviate, the inherent disadvantages that particular groups experience.10

Ibid.

This article examines the lack of de jure equality in Uganda which must be addressed comprehensively to provide a strong basis for de facto equality and makes an assessment of the role of Uganda's Constitutional Court with respect to discriminatory laws against women in Uganda. The article adopts the following structure. Section 2 provides an overview of the discriminatory laws against women in Uganda with respect to divorce legislation, criminal laws of adultery, succession legislation and marriage laws. These are key areas in which de jure discrimination has been perpetuated in Uganda. Section 3 outlines the relevant provisions of the Constitution of the Republic of Uganda 1995 and relevant international human rights treaties which provide for equality of men and women and non-discrimination against women and examines two cases – Uganda Association of Women Lawyers and 5 others v. The Attorney General; Law and Advocacy for Women in Uganda v. Attorney General of Uganda – in which Uganda's Constitutional Court confronted the discriminatory laws outlined in section 2 and declared them null and void. Section 4 makes several concluding observations.

 AN OVERVIEW OF DISCRIMINATORYLAWS AGAINST WOMEN IN UGANDA

Despite the adoption of a gender-sensitive Constitution in 1995, legislative provisions that discriminate against women continue to exist in Uganda. Domestic legislation has not been consistently harmonised with constitutional principles relating to non-discrimination and equality between women and men, particularly Articles 21, 31 and 33 of the Constitution.11

See section III.1 below.

In 2002 the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW Committee) observed:

While noting that Article 33 (6) of the Constitution “prohibits laws, customs or traditions which are against the dignity, welfare or interest of women”, the Committee notes with concern the continued existence of legislation, customary laws and practices on inheritance, land ownership, widow inheritance, polygamy, forced marriage, bride price, guardianship of children and the definition of adultery that discriminate against women and conflict with the Constitution and the Convention.12

CEDAW Committee, Concluding Observations: Uganda A/57/38 (23 August 2002), para. 154.

This section provides some examples of discriminatory laws against women in Uganda on the basis of sex. It is not intended to provide an exhaustive overview of all such laws but only considers the main legislation in which there are clear de jure discrimination. This forms the basis for examining the role of Uganda's Constitutional Court in confronting discriminatory laws against women. Examples considered below are from legislation in areas of divorce, criminal definition of adultery, succession and polygynous marriages. Space limitations and the need to show how discriminatory these areas have been (or continue to be) are the base for the choices made here

Divorce Legislation: Divorce Act

The Divorce Act13

Cap 249 Revised Edition Laws of Uganda 2000.

which was enacted in Uganda in 1904 has got its origins in the Divorce and Matrimonial Causes Act of 1857 of England.14

See Royal Commission on Divorce and Matrimonial Causes, Report of the Royal Commission on Divorce and Matrimonial Causes, HMSO, (1912); Judgment of A. Twinomujuni JA., infra note 99.

 That Act also had its roots in the Common Law of England whereby a valid marriage could only be terminated by the death of one of the parties to it or by a divorce decree pronounced by a court of competent jurisdiction. The Matrimonial Causes Act of 1857 provided that a party to a marriage could obtain a decree of divorce on proving that the spouse had committed a matrimonial offence. The only offence that entitled a husband to obtain the decree was adultery by his wife. For a wife, it was not enough for her to prove adultery against her husband. She had to prove that the husband was guilty of incestuous adultery or aggravated adultery, which meant adultery plus another offence e.g. bigamy, rape, sodomy, bestiality, cruelty, desertion for two or more years (Matrimonial Causes Act 1857, S. 27). This law, which reflected the mid-Victorian attitude to sexual morality, was brought into force in Uganda by the enactment of Divorce Act on 1 October 1904 by the British colonialists. Section 3 of this Act provided that the courts in Uganda exercise their jurisdiction under the Act ‘in accordance with the law applied in matrimonial proceedings in the High Court of Justice in England’. Despite the fact that the Divorce and Matrimonial Causes Act of 1857 of England has since been reformed by legislation enacted in 1923, 1937, 1969 and 1973, and the concept of divorce granted on the basis of proof of matrimonial offences was abandoned, the 150 year old English Law has continued to be intact and in force in Uganda until 10 March 2004 when the Constitutional Court declared certain provisions of it null and void as shown in section III.3 below. Six sections of this Act (sections 4, 5, 21, 22, 23, and 26) deserve specific mention as they specifically discriminated against women on the basis of sex Section 4: Grounds for Dissolution of Marriage

Under section 4 (1) of the Divorce Act, a husband could petition for dissolution of a marriage on the sole ground of adultery. However, by section 4(2) of the Act a wife could not divorce a husband on the sole ground of adultery. It is useful to quote this section below.

A husband may apply by petition to the court for the dissolution of his marriage on the ground that since the solemnisation of the marriage his wife has been guilty of adultery.

A wife may apply by petition to the court for the dissolution of her marriage on the ground that since the solemnisation of the marriage-

her husband has changed his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman; or

has been guilty of –

incestuous adultery;

bigamy with adultery;

marriage with another woman with adultery;

rape, sodomy or bestiality;

adultery coupled with cruelty; or

adultery coupled with desertion, without reasonable excuse, for two years or upwards.

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