Effective Policy and Practices
In the last two decades since MIFUMI embarked on its social activism, MIFUMI has influenced effected key changes in policy and practice on women’s right to be free from violence. MIFUMI works with communities using democratic and participatory processes to achieve women-friendly policies, as well as being bold in the use of the Constitution and international human rights law on women’s rights as legal and advocacy tools, to tackle social injustice affecting women in rural communities and marginalized people, and to strengthen health, police and judiciaries. Below is a description of the history of legislation and policy affecting women and an outline of the ways in which MIFUMI influenced policy and practice.
Women’s Human Rights – Mary Prince petitions UK parliament to be free from slavery
Domestic violence and the law.
The Convention on the Elimination on all Forms of Discrimination Against Women (CEDAW) and Violence Against Women.
World Conference for Women and Women’s Day events
Family Law Reforms in Uganda – The 1964 Kalema Report – A Commission of Enquiry into Women’s Status in Marriage and Divorce and its proceedings on bride price.
MIFUMI effects key policy changes on the custom and practice of bride price – The Landmark ruling by the Supreme Court on bride price in 2015
Using the referendum as an advocacy tool for change
Submissions to the Legal and Parliamentary Affairs Committee on the Family Law Bill and bride price.
Using stories as advocacy tools and a form of moral suasion to persuade government and power holders to honour their commitments
Petitioning the Constitutional Court on the legality of bride price
Enacting district-level bye-laws on bride price and child rights
The Family Law Bill and Bride Price
MIFUMI’s work effects changes to domestic violence law, policy and practice – Domestic Violence Act 2010
MIFUMI’s work strengthens Police system and practices on domestic violence (2000).
1999: MIFUMI effects policy change on Court Fees on domestic violence cases (1999)
MIFUMI successfully lobbies Tororo District Health department and a health circular is issues on Police Form 3 so women no longer have to pay for medical examination and report of injuries (2006).
Women’s Human Rights – Mary Prince petitions UK parliament to be free from slavery
Women have been fighting for their rights down the ages using law and policy. Mary Prince, a slave, travelled from the Caribbean to England with her brutal master, Mr Wood in 1828, and there she petitioned the UK parliament to grant her the right to be free. At the time, England did not allow people to be enslaved on English soil. The petition was not heard but the publicity gained from her book, written with the help of the Anti-Slavery Society and the first ever narrative by a black woman to be published in Britain, meant that Mary Prince was never again enslaved. We like to use the example of Mary Prince because, she petitioned government against slavery in the same way that MIFUMI petitioned court against bride price – a slave-like practice.
Women have been fighting for their rights down the ages using law and policy. Mary Prince, a slave, travelled from the Caribbean to England with her brutal master, Mr Wood in 1828, and there she petitioned the UK parliament to grant her the right to be free. At the time, England did not allow people to be enslaved on English soil. The petition was not heard but the publicity gained from her book, written with the help of the Anti-Slavery Society and the first ever narrative by a black woman to be published in Britain, meant that Mary Prince was never again enslaved. We like to use the example of Mary Prince because, she petitioned government against slavery in the same way that MIFUMI petitioned court against bride price – a slave-like practice.
Early in the 20th century, following relentless lobbying by the Suffragettes Movement around the world (Australia 1902, the UK 1918) women were granted the right to vote. Since then women have continued pushing for equal rights with men.
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and Violence Against Women
The first women’s Bill of Rights was adopted in 1979 under the convention called CEDAW. The convention was adopted to end discrimination against women. Under Article 3:
States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.
The Convention focussed on securing women’s right to equality, in areas of blatant discrimination such as in marriage and divorce, property rights, voting rights, employment, occupation and professions (women were not allowed to work in certain male-dominated occupations like driving or armed combat or in professions like medicine and law).
Although the convention secures equality of women with men, it did not directly address VAW nor does it contain any express reference to the issue of violence against women. This could be because CEDAW formulated in 1979 when there was little recognition if any of VAW as an issue falling within the ambit of international human rights law. However, in 1992, the CEDAW Committee adopted General Recommendation No 19. According to this document, the definition of discrimination included GBV – that is violence that is directed against a woman because she is a woman (or violence that disproportionately affects or is directed against women). Since then women have been pushing for laws and policies to enable them to realise the fundamental enjoyment of human rights and to be protected.
In 1992, the UN General Assembly passed a Declaration on the Elimination of Violence against Women, after the Convention on the Elimination of All Forms of Violence Against Women (CEDAW) in 1989 had recognised gender-based violence as a form of discrimination and thereby a human rights issue. At the Vienna Conference in 1993, Hillary Clinton famously declared, “Women’s Rights are Human Rights”. In 1995, Uganda, together with other UN nations, endorsed the Beijing Platform of Action and Beijing Declaration.
The Protocol to the African Charter on Human and Peoples Rights on the Rights of Women (signed 2003, effective 2005), addresses and condemns harmful practices such as female genital mutilation. Although it is not specifically named, it can be implied that bride price is one such practice.
Domestic violence and the law
Women’s right to be free from violence has took a long time to be enacted into law or policy for two main reasons: The main one being that it was regarded as a domestic affair and therefore within the private sphere of the home where the State did not interfere and secondly because domestic violence was not distinguished from stranger violence. It was assumed that serious cases of violence against women was already covered under the Penal Code and lumped together with offences such as assault and grievous bodily harm and even homicide. There was also the perception that men could discipline their wives and children with physical punishment. In 1964 a judge famously ruled that a man could beat his wife so long as the stick was not thicker than his thumb, hence the phrase “rule of thumb”. Increased awareness of VAW means we can now use terms such as “femicide” to describe the disproportional killing of women, girls or the unborn girl child.
As the table below shows, there are several reasons why intimate partners violence should be distinguished from stranger violence in investigation and interviewing and redress.
| Stranger violence | Intimate partner violence |
|---|---|
| Victim does not know the offender | Survivor knows the offender |
| Violence occurs in public places | Violence occurs behind closed doors |
| Injury is inflicted on visible parts of the body | Injury is often inflicted on private areas of the body |
| There are witnesses | It is carried out behind closed doors with no witnesses except children |
| Victim does not rely on the offender | Survivor relies on the offender for sustenance |
World Conferences for Women Conferences
The advent of World Conferences on Women, organized by the United Nations, has done much to push forward the agenda for women’s advancement and ending VAW, including in Uganda. The first took place in Mexico City in 1975 Copenhagen in 1980 during which time Uganda was suffering a break down in the rule of law under military governments. The third WCW took place in Nairobi in 1985 and was represented by Uganda under the new National Resistance Movement government. Women returned from Nairobi buoyed from the conference and went on to push for gender law reforms under themes of “women in development” and policies like “affirmative action” in education and political representation (electoral colleges) were introduced. The fourth conference and by far the most important in dealing with VAW took place in Beijing in 1995, which has since been followed by a series of five-year reviews.
The 1995 Fourth World Conference on Women in Beijing marked a significant turning point for the global agenda for gender equality. The Beijing Declaration and the Platform for Action, adopted unanimously by 189 countries, is an agenda for women’s empowerment and considered the key global policy document on gender equality. It sets strategic objectives and actions for the advancement of women and the achievement of gender equality in 12 critical areas of concern. Key among them was gender-based violence, which took centre stage and affirmed GBV as a human rights issue and women’s rights as human rights. Governments encouraged to enact laws, policies and measures to prevent violence against women, protect and provide for survivors of violence and to punish the perpetrators. MIFUMI embarked its work on domestic violence in 1999 and adopted the Beijing platform policies of provision, protection and prevention, which came to be known as the MIFUMI “PPP” approach.
Observance of Women’s Events
International observance of days like the campaign of “16 days of Activism Against Violence to Women” has been marked annually since 1991. It runs from 25th November to 10th December to coincide with Human Rights Day. It continues to raise awareness of VAW and give witness and testimony to survivor’s courage in the face of terror and injustice. Another international day of observance is “Women’s Day: which falls on March 8, continues to foster and encourage the advancement of gender equality and women’s empowerment.
Family Law Reforms in Uganda
International observance of days like the campaign of “16 days of Activism Against Violence to Women” has been marked annually since 1991. It runs from 25th November to 10th December to coincide with Human Rights Day. It continues to raise awareness of VAW and give witness and testimony to survivor’s courage in the face of terror and injustice. Another international day of observance is “Women’s Day: which falls on March 8, continues to foster and encourage the advancement of gender equality and women’s empowerment.
The Kalema Report 1964 – The Commission of Enquiry into Women’s Status in Marriage and Divorce and its proceedings on bride price
Policies and Practice on women’s rights in Uganda had earlier on started as an attempt as domestication of international human rights law and to bring Uganda into line with international rulings on the treatment of women began with the Commission of Enquiry into Women’s Status in Marriage and Divorce (Kalema, 1965). This was an attempt at family law reforms and was followed by constitutional reforms under the Odoki Commission (1995).
During the Commission of Enquiry into Women’s Status in Marriage and Divorce, issues relating to bride price were put forward by women. However, opportunity was lost to advance the issue because only one of the six commissioners was a woman, and the sampling of opinions on the issue was heavily biased in favour of men. This was reflected in one of the main recommendations of the commission, namely the retention of bride wealth, despite strong complaints by women about the practice (Tamale, 1993, as cited in Oloka and Tamale, 1995, p.725).
The second opportunity where law reform could have had a positive impact was during the constitution-making process in the early 1990s, when the Constitutional Commission recorded the arguments for and against the practice of bride price, but recommended its retention as a cultural practice. Again, some delegates, especially women, called for bride price to be abolished, but their arguments did not attract much attention, and most men supported its retention. All the ingredients whereby MIFUMI was to challenge the constitutionality of the practice of bride price had already been laid down during this consultative process, but women’s voices were silenced.
MIFUMI effects key policy changes on the custom and practice of bride price
Using the Referendum as an advocacy tool
MIFUMI used the Constitution and International human rights law on women’s rights as an advocacy tool to effect changes in policy and practice.
Our campaign on bride price was based on the premise that bride price was a cultural driver of violence against women. The campaign began in 2000 and lasted until 2015.
In August 2015, the landmark ruling by the Supreme Court on bride price was a significant victory for reformers – and the culmination of a fifteen-year campaign by MIFUMI.
It began with the establishment of a domestic violence advice centre in Uganda, at Kirewa, near Mifumi village in 1999. Within a year of establishing a domestic violence advice centre, MIFUMI’s research revealed that 60 per cent of domestic violence cases reported were related to bride price. We checked out the Uganda Constitution and established that it allowed individuals to hold social referendums. We had failed with the politicians – they had asked us to wait until their new term of office when they had 5 clear years in office. There was no joy with the cultural leaders either, so we decided to hold a referendum under the auspices of the district administration. The Chair of the Electoral Commission gave his approval, provided that we used closed ballot boxes. Newspapers camped in our offices to cover the event, and a British High Commission attaché and several other diplomats came as observers. The referendum took place in the Tororo district in December 2001, while the world was still reeling from 9/11. Sixty per cent of those voting said “Yes” to reform. This democratic process, using the constitution was bold and innovative and secured MIFUMI a case for reform.
Submissions to the Legal and Parliamentary Affairs Committee on the Family Law Bill and Bride Price
Following the results of the referendum, MIFUMI made a submission to the Legal and Parliamentary Affairs Committee during the hearing of the Marriage Bill on the issue of bride price. We argued the case that bride price should be reformed to marriage gifts that are not demanded, paid or refunded. However, we were referred back to the local district as the right forum to decide “cultural matters”. Their position exemplified the position described as “the assignment of particular issues to the ‘private’ realm,” (Charlesworth and Chinkin, 2005). The state, they argue, “can devolve some of its powers to centres of authority in the private sphere that may have no concern with the unequal position of women or indeed may have an interest in maintaining it.” This was indeed the case, as we had already tried with the district and failed.
Using stories as advocacy tools and a form of ‘moral suasion’ to persuade government and power holders to honour their commitments
Undeterred by rejection at district level, MIFUMI stepped up its bride price campaign, “enlisting stories as a form of moral suasion to reach potential advocates and persuade government to honour its commitments” (Schaffer and Smith, 2004). We lobbied political and religious leaders, some of whom were receptive, others not. We also wrote to the head of the Peace and Justice Commission at the Vatican; his response, while encouraging, was in line with Church policy of non-interference in cultural matters. After several such failures to prompt others to take up our cause, MIFUMI decided to act for itself and take the Ugandan government to court. The ineffectualness of lobbying power holders indicates that this method of advocacy should be done in conjunction with other advocacy methods and also strengthens the case for using the law as an instrument of change, because culture can take a very long time to change.
Petitioning the Constitutional Court on the legality of bride price
The MIFUMI case began with a petition to the Constitutional Court in 2007 (which was decided in 2010), in which MIFUMI and 12 other parties challenged the constitutionality of bride price and the practice of demanding its refund in cases where the marriage breaks down. By a majority of four to one (with one of the two male judges, Justice Twinomujuni, dissenting) the court dismissed the petition, and held that although some elements of the practice of bride price were not only unconstitutional but also criminal in nature, the custom and practice of bride price overall was not unconstitutional.
Though disappointed by the outcome, we also believed it to be flawed and therefore open to appeal. We had made use of affidavits by men, women and children narrating stories of human rights abuses. Among them were stories of women who had been beaten and had attempted to commit suicide because they could not afford to refund bride price; women beaten when they failed to perform hard labour; children removed from school and forced into marriage; and men on the run to avoid imprisonment over failure to refund their daughter’s bride price. MIFUMI produced a documentary film – What Price, Bride Price where ordinary men, women and children spoke truth to power. The film prepared the ground, so that by the time MIFUMI’s case came up for hearing in the Supreme Court, there had been a shift in attitudes towards bride price.
After several years of preparation, the case finally went to the Supreme Court in 2014, with MIFUMI and the other appellants filing 12 grounds of appeal, which our counsel combined into four broad groups. The claims we made were:
(a) that the learned Justices of the Constitutional Court had erred in law and fact when they declined to make a finding that the custom of paying bride price and its refund at its dissolution is so notorious that the court should have taken judicial notice of it.
(b) that the learned Justices of the Constitutional Court had erred in law when they failed to make a declaration that the demand for, and payment of, bride price fetters the free consent of persons intending to marry or leave a marriage; this is in violation of Article 31(3) of the Constitution, because the demand for bride price makes the consent of persons who intend to marry contingent upon the demands of a third party (the parents).
(c) that the learned Justices of the Constitutional Court had erred in law when they declined to declare the demand for a refund of bride price unconstitutional, despite their finding as a matter of fact and law, that the practice undermines the dignity of a woman, contrary to Article 33(6) of the Constitution, and may lead to domestic violence.
(d) that the learned Justices of the Constitutional Court erred in law when they declined to make declaratory orders under Article 137(3)(a) and (4) of the Constitution and decided that aggrieved parties may file a suit in the High Court under Article 50(1), despite their finding that a demand for a refund of bride price was inconsistent with Articles 31(1) and 33(6) of the Constitution.
Previously in the Constitutional Court (2010), MIFUMI had adduced evidence to show that there were cases where bride price had led to the mistreatment of women, and domestic violence.
By a majority of four to one (with Justice Kisaakye dissenting), the Supreme Court held that bride price does not fetter the free consent of persons intending to marry, and consequently, is not in violation of Article 31(3) of the Constitution. However, it also ruled that the demand for refund of bride price after the breakdown of a customary marriage is unconstitutional as it violates Article 31(1)(b) of the Constitution, and is accordingly prohibited. Accordingly, our appeal partly succeeded and partly failed.
Bride Price ruling is an advancement of Women’s Rights
The decision of the Supreme Court to outlaw bride price refund was a major step forward in the advancement of women’s rights. This was a landmark ruling that set a precedent throughout Africa, where bride price had not been challenged as a human rights issue in a court of law. Though the decision was conservative in upholding that bride price per se is constitutional, and in this regard yielded only incremental progress, its outlawing of bride price refund will act as a catalyst for other human rights demands that are implicit in such issues as polygamy, wife inheritance and FGC. The outcome lent weight to the argument that society is the first to change, and it’s only later that the law catches up with it.
Enacting district-level bye-laws on bride price and child rights
Between the bride price petition and hearings from 2007 to 2014, MIFUMI continued its campaign on bride price with communities and district local governments. This led to following bye-laws being enacted:
2014: This was followed by the Butaleja (Bridal Gifts) Ordinance, 2014.
2009: Mbabara Bye-law prohibiting child labour.
2008: Tororo (Bridal Gifts) Ordinance made bride price a non-refundable gift.
Family Law Bill and bride price
The Family Law Bill, originally known as the Marriage and Divorce Bill, was introduced in Parliament in the 1980s. It is still stuck on the shelves in Parliament due to controversial clauses such as co-habitation, non-consensual sex, property rights and polygamy. Thanks to MIFUMI, bride price which was once considered controversial, is now considered resolved through the MIFUMI decision in the Supreme Court ruling. The Bill now provides that Marriage gifts are a non-essential ingredient of marriage and makes it an offence to demand bride price refund. MIFUMI lobbied parliament and the Law Reformers to include the word bride price in the wording so that it is recognized as an issue, and not hidden under the terminology of marriage gifts. Since it was first introduced in parliament, it is only the provision of bride price that has made any headway through case law thanks to MIFUMI. We now aim to see it operationalized into law.
MIFUMI effects key policy changes on the custom and practice of bride price
Domestic Violence Act 2010
In 2000, Uganda took violence against women as a priority area in its National Action Plan on Women. The government pledged to join other states to eliminate violence against women, and human rights violations that resulted from harmful traditional practices. Payment of bride price was regarded as one such harmful practice. Moreover, the Poverty Eradication Action Plan (2005) highlighted bride price as the most significant factor holding back women’s empowerment.
It was around this time that MIFUMI stepped up its work on domestic violence and bride price. At the time, gender issues were rarely discussed in Africa. In Uganda, particularly in rural areas, the concept of domestic violence as a serious matter, let alone a crime, was virtually unknown. We were unaware that in the same year, UNICEF’s “State of the World” report had ranked Uganda as having the highest rate of domestic violence in the world, with 59 per cent of women having experienced domestic violence in their lives. However, the work of MIFUMI took domestic violence out of the private sphere and introduced it into the public domain. It wasn’t long before the joint effort of women rights organisations in Uganda resulted in a law on domestic violence.
The Domestic Violence Act, that came into force in 2010 details the responsibilities of the Police and Local Councillors in responding to acts of domestic violence and in aiding the victims. The Police have a duty to serve summons and enforce protection orders issued by the courts.
2004: MIFUMI’s work strengthens Police system and practices on domestic violence.
The Tororo Resolution on Domestic Violence and Police work led to better investigation, evidence gathering, forensics and training of officers. The Resolution was a result of a national training delivered by MIFUMI on domestic violence and gender awareness. It was attended by Police from the Headquarters and from all over the country. It helped to relay the message that domestic violence was a crime. It was followed by MIFUMI establishing the first Police Domestic Violence Unit in Uganda, at Kirewa sub-county, followed by another in Tororo. There are now several Child and Family Protections Units (CFPU) in the country where women are afforded a hearing and counselling in privacy and supported by gender trained officers.
Policy on disaggregated data on domestic violence: MIFUMI worked with the Police in Tororo in the early 2000s which resulted in the adoption of the policy to keep disaggregated or specific data on domestic violence, which was being recorded as assault or GBH. This was long before the national police started recording domestic violence statistics.
2000: The Kirewa Bye-law on Domestic Violence
The Kirewa Bye-law developed using democratic and participatory means enabled fairer representation of women during court hearings. Shortly after MIFUMI established the first Domestic Violence Advice Centre at Kirewa, we realised that women reporting violence and abuse were being doubly victimised. We held several meetings in different parishes of Kirewa sub-county and the result was the Kirewa Bye-law which addressed several community concerns such as how to prevent the girl-child being removed from school to be married off and the need for each homestead to have a latrine.
Important for MIFUMI were provisions in the Bye-law on domestic violence. In the past, cases were heard at the trading centre or at drinking places. The woman was not represented by an IDVA or by any of her people. MIFUMI lobbied in Kirewa sub-county and a Domestic Violence bye-law was passed in 2000 that provided that:
- Court venues should be held in neutral places
- The chair should be a woman
- The judging panel must be gender balanced
- The survivor should have a representative
- Some of her relatives should be present
- Privacy should be observed where necessary
- The perpetrator must sign an agreement.
1999: MIFUMI effects policy change on Court Fees on domestic violence cases
When MIFUMI began work on domestic violence in 1999, we found that women were required to pay a fee levied by the local courts to have their cases heard. The fees were meant to pay for the administrative costs of the hearing incurred by the Local Council and usually this went to the Chairman who presided over cases. Court fees in effect prevented women from reporting violence because they could not afford to pay. This was a form of structural discrimination against women suffering abuse. Moreover, the ruling usually favoured men who were usually known to the Local Councillor, leading to the local saying “a woman can’t win.”
MIFUMI held discussions with the local councillors leading to the waiver of court fees. It was agreed that whoever lost the case, would pay the court fees. This, coupled with our training to the local councillors on violence against women led to fairer outcomes for women.
2006: MIFUMI successfully lobbies Tororo District Health Department which issues a circular on Police Form 3
In 2006, Tororo district health circular abolished and thereby lifted the burden from women of paying for medical examination for use in court. This was a result of MIFUMI successfully lobbying the Director of District Health Services in Tororo to change the policy on use of Police Form 3.
Police Form 3: This is a form given to a survivor or victim of assault to be completed by a medical practitioner following examination, in order to assess the degree of injuries committed against the survivor or victim. The form may be presented in court as evidence during prosecution.
Problems associated with paying for Police Form 3
The Medical Officer who has completed the form may also be required to attend and give evidence in court. Medical Officers charge women for filling in Police Form 3. The charges can be quite high, especially for crimes of a sexual nature, thereby presenting a barrier to women seeking justice. The Medical Officers argue that they have to appear in court to give evidence which will cost them money (transport, etc.) so they transfer this cost to the woman. Women lack money to give to doctors for Police Form 3 for examination in cases of assault, defilement and rape, although in reality medical officers are rarely required to appear in court. However, IDVAs were still forced to pay the Police Form 3 fees otherwise the work of the Police and court to prosecute the perpetrator is weakened.
MIFUMI successfully lobbied the Director of District Health Services in Tororo in 2006 resulting in a waiver of fees for Police Form 3. A Policy Circular was sent to all health practitioners in the district outlining the new policy that women will not be charged for Police Form 3.
Amendment of Police Form 3 and 3A
Following advocacy by civil society organizations, Police Forms 3 and 3A were revised and amended in 2011, and formally launched in December 2012, which was six years after MIFUMI had already changed policy locally. The amended Police Form 3 and 3A now authorises not only doctors, but also registered midwives and clinical assistants to complete it and testify in court.