Polygamy and Bride Price
Polygamy is related to bride price, which is not just about payment but includes power, because it gives power to men to marry as many women as they can pay for. Prior to MIFUMI’s successful petition that led to bride price refund being outlawed, a woman who left a marriage because she did not accept polygamy would still have to refund the bride price under customary law.
MIFUMI's petition on Polygamy
In January 2010, MIFUMI filed a petition to the constitutional court challenging the custom and practice of polygamy. In September 2018, the case came up for mention. However, since almost 8 years had passed since the submission, the terrain had changed and MIFUMI needed new research to reflect this. We therefore decided to seek an adjournment. However, court dismissed the case but allowed us to resubmit it since it was not heard on its merits and it is public interest litigation. Court also ordered MIFUMI to enjoin other interested parties to the petition, such as the Muslim Women’s Association. Additionally, the Muslim Male Lawyers Association, as co-respondents with government.
Reforms in Africa
It is worth noting that a few countries have undertaken reforms on polygamy. These reforms include those countries in African that have taken the bold steps to abolish the practice such as Tunisia and Cote d’Ivoire. Others such as Somalia, Egypt and Morocco, have adopted a midway approach to limit the practice by imposing conditions on the husband to seek permission from courts or recognized authority to marry a second wife, upon satisfaction of specified conditions; or allowing the wife a right to divorce upon showing that the second marriage has either made her suffer a material of moral injury or will lead to injustice, etc. (Kisakye 2005).
In Uganda proposals for family law reform along the same lines have been made but the Marriage Bill has stalled in Parliament for over 20 years.
Although polygamy is commonly practiced in Africa and Uganda in particular, families and communities rarely denounce it because it is a burden to women and children and therefore its ills are hidden from the public space.
There is a need to conduct a situation analysis, to research and update data available on the prevalence, its drivers and impact of polygamy on women and children, and to detail the legal and policy framework for action, and potential roles for various actors in making the case for change and addressing the challenge
What we know so far:
Discrimination against women
By giving an exclusive right to the man to marry up to four wives in Islam and an unlimited number of wives under customary law, the right of women to equality in such marriages is violated. The discrimination is further aggravated by the fact that many legal regimes that permit polygamy do not grant a right to a wife to divorce a husband who has married a second wife. On the contrary, the legal regimes provide for very stringent laws on adultery, particularly for married women, and entitle a husband to divorce the wife, even after a single incident of adultery, such as was the case in Uganda prior to the 1995 Constitution.
Negative impact on women and children
- It negates the principle of equality between men and women guaranteed by the constitution.
- Women are denied any freedom of choice, as women are not able to have any say in the process; it is a one-sided decision made by men, but which has severe consequences for the wife/wives already in the marriage yet they have no say.
- It is an invasion of the right to privacy because it introduces a third party to the marriage and subjects women to cruel and degrading treatment.
- Polygamy increases women’s risk to violence, including domestic violence and child abuse because of the attendant conflicts that arise between the parties, which can lead to injuries and death. There are women on remand for murder of their husbands for bringing a new wife.
- It undermines the wellbeing of women and children because of the haemorrhage of resources that would otherwise be expended on one family.
- It makes women susceptible to ailments shared from third parties – See Human Rights Watch report, “Just Die Quietly” (Karanja, 2003).
- Men who marry under monogamous unions such as in Church sometimes bring in other pseudo-wives by contracting customary marriages and paying bride price without any penalties.
International human rights law on harmful practices
- Articles 2(2) of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, which Uganda signed on 18 December 2003, specifically obliges Uganda to outlaw cultural practices and traditions that affect the dignity of women.
- Articles 3 and 5(a) of the Convention on the Elimination of All Forms of Discrimination Against Women obliges Uganda to ‘take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.
- Article 33(6) of the Constitution of Uganda prohibits laws, customs, or traditions that are against the dignity and welfare of women.
Developments on polygamy in Kenya
Uganda’s neighbouring country Kenya, has recently legalized polygamy. It is important that this regressive trend is countered and prevented from influencing the debate in Uganda. According to Nation Group’s leading journalist Onyango-Obbo, this trend is because, “The first crop of women in top political leadership were warriors who had fought for women’s rights in a hostile patriarchal Africa, dominated by reactionary powerful men”. These veteran feminists are now being replaced by socially conservative women. The voices of ordinary women needs to be amplified to counter this.