New Vision Thursday, 1st September, 2011
By Dora Byamukama
IN May, a bid to make progress on the review of Marriage and Divorce laws by Parliament was not successful. An explanation by the Attorney General that the Marriage and Divorce Bill could not be enacted into law on the basis that further consultations needed to be done was met with displeasure by some MPs who demonstrated this by walking out.
The review of marriage and divorce laws has been on since 1964 when the Kalema Report was produced. It is now 47 years and the struggle continues! The mega question is, why has review of the marriage and divorce laws been such as uphill task?
A half an hour radio programme on the subject revealed to me some of the intricacies that have stalled the process. It was clear what has stalled the process of reviewing off the marriage and divorce laws is not based on its contents.
It is mainly premised on misconceptions; lack of awareness of laws and practices; refusal to take into account practical realities; and religious and cultural beliefs which in some instances prefer to treat women as second class citizens.
The first misconception espoused was that this is the first time Uganda is going to enact a law on divorce. One caller said this is a Christian country and marriage vows are that marriage remains intact “till death do us part”.
Uganda has a Divorce Act which commenced on October 1, 1904. It also has The Hindu Marriage and Divorce Act which commenced on September 1, 1961. In effect what the Parliament will do is to revise the laws that are already in existence.
The misconception that Uganda is a Christian country is premised on the origins of our colonial masters, this is not the case because Article 7 of the Constitution of Uganda states that “Uganda shall not adopt a state religion”.
While religious institutions have power to marry people, the state reserves the power to ensure that there exist peace and order starting with the basic unit of society which is the family. This is why one may choose to divorce under the laws of Uganda notwithstanding that they were married in church.
The Church has the liberty not to recognise the divorce or to bar the person from taking part in rituals such as Holy Communion or refusal to preside over another marriage but for all intents and purposes a legally recognised divorce absolves that person of any marital responsibility.
Communities which make up present-day Uganda obviously had ways of handling cases of divorce. Most customary practices would grant divorce to a woman if her husband was impotent, a night dancer or dangerously insane.
Under most customary and religious laws, divorce may be handled by clan leaders and family members. Another caller said, the advocates for the marriage and divorce laws also advocate homosexuality and want to import Western ideas in our society. This point is incorrect. The principle legislation on marriage is the Constitution, in particular Article 31(1) provides key principles, these include the principle that:
A man and woman are entitled to marry only if they are each 18 years and above; and are entitled at that age to start a family and to equal rights at and in marriage, during marriage and at its dissolution.
Marriage between persons of the same sex is prohibited;
Marriage shall be entered into with the free consent of the man and woman intending to marry. Review of the law of marriage must therefore of necessity include all these principles. This is why the review of the marriage and divorce laws addresses new concepts which include proposals that:
Marriage gifts are not an essential requirement. This is premised on the principle that a man and woman should be treated equally at marriage and more fundamentally some families no longer request for bride price anyway. The law on bride price should be optional in order to provide for practical realities. In line with this, the proposed review on marriage and divorce prohibits return of bride price.
Prohibition of same-sex marriages in accordance with the Constitution; and
Prohibition of widow inheritance because automatic inheritance of a widow does not take into account that marriage should be entered into with free consent.
Practical realities also oblige review of the marriage and divorce law to comprehensively deal with the subject of property rights in marriages and at its dissolution. There is a proposal for a property agreement for two persons in contemplation of a marriage or cohabitation with each other or cohabiting. This addresses the fact that today, many Ugandans stay together in associations which are recognised under the law.
Such people buy property jointly or individually which interest can only be protected by a legally binding agreement. This provision also caters for children born in these associations which are not recognised under the law.
Practical realities on review of the marriage and divorce laws also need to take into consideration decisions made by courts. In December 2004 victory was registered in a constitutional petition filed by the Uganda Association of Women Lawyers, Dora Byamukama and Others. The essence of the petition was based on legal provisions of the Divorce Act which provided that a husband could obtain a divorce on the basis that his wife was adulterous whereas the wife could obtain it only on the basis of aggravated adultery—which meant adultery plus another offence such as incest, cruelty or desertion. This law treated similarly situated individuals differently, it discriminated against women and was thus declared unconstitutional.
Since 2004, this gap in the law has not been filled; there is thus need for review of the law in order to provide justice for married persons equally.