The past two columns in this series have explored the important defence of individual autonomy – and human rights in general – represented by the decision of the Constitutional Court in Women’s Probono Initiative v Attorney General (Constitutional Petition No.12 of 2021).
Today, we consider the Court’s use of choice and consent as a framework for addressing the rights to freedom of religion and culture. As noted previously, the Court largely deferred to polygamy as an optional form of religious or cultural expression.
In the main, I agree with the Court’s approach in this regard, for three reasons: i) thepetition concerned the choices of adult persons; ii) the decision resisted the imposition of an ‘external’ (State) fetter on individual autonomy; iii) the choices in question (to enter or remain in a polygamous marriage) were not accompanied by harm intrinsic, or exclusive, that associational arrangement – and any identified harm could be deterred, mitigated or punished by reference to the general law of the land.
At the same time, precisely for these same reasons, I believe there are a number of previous decisions of the Constitutional Court which do not quite sit well with the spirit of the Women’s Probono Initiative decision. I will deal with these points in this same order. In the first place, in my view, the Court was correct in dealing with the freedoms of religion and culture on the basis of the free choice of adults.
However, the decision of the Court calls into question a previous decision of the Constitutional Court – Law and Advocacy for Women in Uganda (LAWU) v Attorney General (Constitutional Petition No.8 of 2007).
In that case, the Court unanimously declared ‘female genital mutilation’ unconstitutional – as being inconsistent with, among other things, the rights to life, the freedom from torture and the rights of women.
In so finding, the court rejected the view that this practice could be saved as an exercise of the freedoms of religion and culture, in so far as it was itself inconsistent with the other critical rights stated.
In his lead judgment for a unanimous court, Justice Amos Twinomujuni noted: ‘Any person is free to practice any culture, tradition or religion as long as such practice does not constitute disrespect for human dignity of any person, or subject any person to any form of torture or cruel, inhuman or degrading treatment or punishment.’ [at page 17] At the same time, that decision covered not only girls – but also adult women who, under the standard of the Women’s Probono Initiative case – would have the autonomy to make choices, even where those choices carried certain risks.
Simply put, while FGM is indefensible as applied to girls (below 18), the matter is more complicated in the case of adult women, who as autonomous individuals have the right to make choices, even bad ones.
Indeed, is there a significant difference between ‘FGM’ and certain other – and apparently not only acceptable but celebrated – cultures such as labia elongation? As applied to adults, the range of permissible actions must necessarily be broad. When it comes to children, of course, there are strong reasons to ensure that – as much as possible – any procedures (religious, cultural or otherwise) that may occasion harm to them are prohibited.
I recommend, in this regard, Harry Mwesigwa’s excellent Bachelor of Laws (LLB) dissertation (Makerere School of Law, June 2024) in which he makes a convincing case for the unconstitutionality of infant male circumcision in Uganda. Secondly, the Court in Women’s Probono Initiative was resisting an ‘external’ (in this case State) fetter on the exercise of human relations (by cultural or religious groups and individuals therein).
In this regard, it was ‘human rights-enhancing’ rather than restrictive. The petitioners invited the Court to outlaw a form of association, an invitation which the Court correctly declined, observing that not only was this association a manifestation of religious or cultural expression, but that to allow such state intrusion would be to open the window to other forms of restrictions (such as on interracial or interfaith unions).
In my view, the Court adopted the proper – ‘human rights-enhancing’ approach. However, again for the same reasons, this decision should invite a reconsideration of the High Court decision in Bruno Kiwuwa v Ivan Serunkuuma and Juliet Namazzi (HCCS 52 of 2006) and the Constitutional Court’s decisions in Michael Aboneka v Watoto Church Ltd (Constitutional Petition No.9 of 2018) and Sharon Dimanche and 2 Others v Makerere University (Constitutional Appeal No.2 of 2004).
In Kiwuwa, the High Court unfortunately – at the instance of the intended bride’s father – prevented a couple from proceeding with a wedding scheduled to be conducted at Makerere University’s St. Francis Chapel, simply because they belonged to the same (Ndiga) clan.
It is notable that they were not seeking to conduct a customary marriage, in which the cultural prohibition of interclan marriage might have been relevant (although itself constitutionally suspect). Indeed, the decision in Kiwuwa constitutes precisely the kind of inordinate State intrusion into associational and relational freedom – of the right to love – which the Court in Women’s Probono Initiative expressly rejected, and which it warned against.
On the other hand, in Michael Aboneka the Constitutional Court was asked to consider the propriety of more private fetters to human relations (in this case church requirements of a letter of parental consent, negative HIV status and others as a condition of marriage).
On the basis of choice – and of religious freedom – the Constitutional Court upheld these restrictions. In his lead judgment in Aboneka Justice Gashirabake contended: ‘…A keen reading of Article 29 (l) (c) indicates that the discretion is left to the different organizations to determine their own practices. Further it should be noted that a citizen is at liberty to choose to belong to that organization and manifest their practices or not.
My understanding then is that if I am not comfortable with certain practices in an organization, I have the right to leave that organization. Furthermore, Article 37 which allows Ugandans to belong to any religious sect and promote the culture of that sect also brings in the aspect of choice.
A deeper analysis of choice is desirable in situations involving restrictions on the right to manifest one’s religion. Whenever one has an opportunity to exercise choice then, it is most likely that there is no violation of the said right.’ [at page 7]. This particular passage was cited with approval by the Court in Women’s Probono Initiative [at page 19].
The Court in Women’s Probono Initiative also offered its own flavour of this when it noted, with respect to property rights, as follows: ‘…Consenting adults cannot be heard complaining about terms and conditions they agree to abide by’ [para 120, at page 39] The Michael Aboneka approach does not, in fact, sit well with the broader ‘human-rights enhancing’ foundation of Women’s Probono Initiative.
Indeed, while using the language of ‘choice’, the Court in Aboneka was in effect condemning affected individuals (such as Christians estranged from their parents, or those living with HIV) to a ‘false choice’ in which the ability to marry and to experience the freedom of religion were expressed as binary options.
I am not sure that it is always an answer, in such cases, to emphasize ‘choice’. There are, surely, some core values which private associations (religious, cultural or other) should not be allowed to violate, merely on the basis that other persons have the ‘choice’ to opt for alternative arrangements.
Thus, for instance, would the Constitutional Court look away – based on the Aboneka dictum – if a church forbade interethnic marriage? Or could a ‘whites only’ club (as Kampala Club was for most of the colonial period) pass constitutional muster on the basis of the existence of ‘choice’?
A lot of the language in Aboneka, and some of that in Women’s Probono Initiative would suggest so – and this is deeply problematic. This was similarly part of the flawed approach in Sharon Dimanche, in which, the Supreme Court observed that Seventh Day Adventist students who felt religiously constrained from doing Makerere University examinations on Saturdays had the option of joining other universities in Uganda.
It was my view then, and remains my view today, that this was a most unfortunate basis for that Court’s reasoning. There are certain values which are too critical to be reduced to ‘choice’. Indeed, there are many situations in which particular groups (religious, cultural and other) must be forced – by the State – to comply with the dictates of the Constitution, including with respect to equality, non- discrimination and human dignity.
We now turn to the third and final point – the question of harm. The Court correctly, in my view, noted that the nature of the harm cited by the petitioners was not intrinsic, or exclusive, to polygamy.
Polygamy did not necessarily exacerbate HIV transmission, or by itself constitute inhumane or degrading treatment or punishment. In addition, where cruelty became a feature of such unions, the parties could have resort to the general law of the land.
At the same time, again I think the jurisprudence of the Constitutional Court on the question of harm has not been consistent. To return to the LAWU case on FGM, for instance, the Constitutional Court recorded a range of deleterious impacts of female genital cutting including urinary incontinence, recurrent urinary track infections, difficulties in menstruation, chronic pelvic infection, obstetric complications, keloid scar formation sexual dysfunction and, in some cases, death.
To be sure – again – any one of these kinds of harm would, with respect to girls (below 18) be sufficient to make the practice unconstitutional. However, it bears emphasizing that the matter is complicated with respect to adult women.
Are adult women not allowed, constitutionally, to undergo procedures (whether for cosmetic purposes or otherwise) which might carry significant risks to their own health? To hold otherwise would imply that adult women lack the capacity to opt for all kinds of cosmetic surgical procedures that are currently the norm in Uganda such as breast surgeries (enlargements, lifts, reductions etc), abdominoplasty (also known as ‘tummy tucks’), liposuction (removal of excess fat), fat transfers, vaginoplasty, labiaplasty and many others.
To expand the scope further, we might consider such inherently dangerous sports and activities such as boxing, rugby, motorcycle racing, auto racing, zip lining, water rafting and others. Boxing and rugby are, for instance, known to have serious health risks, including concussions, fractures, vision and hearing loss, and more seriously – chronic traumatic encephalopathy (CTE) – a degenerative brain disease.
Indeed, just this year, in February, a young Ugandan man tragically lost his life following an injury sustained in a rugby match at Kyadondo. To take the logic of LAWU (the FGM case) – with respect to adult women – would be to suggest that any and all of the examples of risky procedures and activities cited above are unconstitutional (being presumably inconsistent with the rights to life, and perhaps the freedom from torture or other cruel, inhuman end degrading treatment).
The absurdity of such a conclusion invites the need for a reconsideration of part of the reasoning in the LAWU case. At the same time, are there not certain kinds of harm – of indignities – which the State is enjoined to protect its citizens (even adult ones) from, even some to which those citizens might be quite willing to subject themselves?
I recall the case of a Danish artist, Kristian von Hornsleth, who, in 2006, went to the village of Buteyongera and entered into ‘arrangements’ with several locals. The deal was simple – he would give a pig or goat to every man or woman who agreed to legally change their names to his.
From his arrival in June 2006 to October 2006 (when the government intervened on grounds of public policy) over 340 ‘Hornsleths’ were residing in Buteyongera. Of these, 270 had received a pig each, while 70 had received a goat each.
The challenge with some of the language in Women’s Probono Initiative regarding choice and consent with respect to harm to oneself (and even certain third parties, such as children) is that it does not properly consider that there might be cases in which there may be good reasons for the State to constrain individuals from ‘accepting’ certain ‘unacceptable’ things (whether based on the threshold of harm, or the particular kinds of harm).
It is in this respect – with regard for the scope of ‘acceptable harm’ – that, in my opinion, both the decisions in LAWU (at one extreme in terms of rejecting all individual autonomy) and Women’s Probono Initiative (at another extreme in terms of not taking into account potential limits on such autonomy) are unsatisfactory.
We had hoped to conclude the analysis of this case today. However, as noted earlier, it is one of those decisions which are brief but loaded with significance, and so the final comment must be postponed to next week.
In our final reflection, we shall point out certain aspects of the decision which might be problematic for future constitutional litigation and others which represent more promising avenues for future ‘human rights- enhancing’ advocacy.
The writer is Senior Lecturer and Director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and Legal Philosophy.