In this final note on the Constitutional Court’s decision in Women’s Probono Initiative v Attorney General (Constitutional Petition No.12 of 2021), we would like – as promised – to briefly reflect on some additional aspects of this seminal judgment.
Aside from the strong defence of individual liberty represented by the decision (explored in the past three columns in this series), the judgment also opened a window into a potentially brave new world for women’s rights – and domestic relations – in Uganda, insofar as it clarified that Uganda’s legislative framework actually leaves room for polygamy, rather than merely polygyny.
In her lead judgment, Justice Margaret Tibulya noted that: ‘The word “polygamy” is defined as a marital practice in which a person has more than one spouse at the same time, while “polyandry” is defined as the practice of a woman having more than one husband at the same time.
“Polygyny” on the other hand is defined as the practice of a man having more than one wife at same time. Going by its definition, the word “polygamy” is gender neutral.’ [paras 69 and 70, at p.24 of the decision]. On this basis, the Court was of the view that Section 4 (2) of the Customary Marriage (Registration) Act could not be impugned as constituting discrimination, since it left open the form of multiple partnering which persons could engage in.
In this regard Justice Tibulya observed: ‘By defining a “customary marriage” as “a marriage celebrated according to the rites of an African community and one of the parties to which is a member of that community, or any marriage celebrated under Part III of this Act”, the Customary Marriage (Registration) Act left issues relating to the form which customary marriages may take, to the dictates of the rites of the African community to which the subjects of such marriages belong.
Drawing on the foregoing, the fact that African women in Uganda do not contract polyandry marriages is not a function of section 4 (2) of Customary Marriage (Registration) Act. Rather, it is a function of the rites of the African communities (i.e., their tribal culture) from which they come.’ [paras 71 and 72, at pp.24 and 25 of the decision].
It was for this same reason that the Court felt that the structure of Islamic marriage was not inconsistent with the freedom from discrimination, guaranteed under Article 21 of the Constitution.
On this issue, Justice Tibulya noted: ‘Section 2 (now 3) of the Marriage and Divorce of Mohammedans Act also leaves issues relating to forms of marriages to the dictates of “the rites and observances of the Mohammedan religion customary and usual among the tribe or sect in which the marriage takes place.”
Therefore, the fact that Moslem women in Uganda do not contract polyandry marriages is not a function of the Marriage and Divorce of Mohammedans Act. Rather, it is a function of “the rites and observances of the Mohammedan religion customary and usual among the tribe or sect in which the marriage takes place.”’ [para 74, at p.25 of the decision]. At the same time, while potentially emancipatory, the Court’s approach to this question was not as forthright and courageous as it could have been.
In the first place, while correctly noting the facially ‘gender-neutral’ nature of the provisions in the Customary Marriage (Registration) Act [CMRA] and the Marriage and Divorce of Mohammedans Act [MDMA], the Court adopted a ‘see-no-evil, hear-no-evil’ approach to the reality of the rites and practices under both customary law and Islam. One would be very hard pressed to find an ethnic group in Uganda whose customs permit a woman to marry multiple husbands.
Similarly, the Court could very easily have taken judicial notice of the fact that Islamic law does not envisage, let alone permit, the marriage of a woman to more than one man at a single time.
I suspect that the Court’s approach – to essentially dodge the thorny question of the reality of polygyny (rather than polyandry) in Uganda – may have been partly informed by a desire not to fully address the decision, cited by the petitioners, from the Benin Constitutional Court – DCC 02-144 of December 23, 2002 – in which that court had concluded that Section 74-5 of the Benin Code of Persons and Family was unconstitutional, in so far as it allowed men to be polygamous, while women could only be monogamous.
The Court similarly failed or refused to engaged with relevant comparative law, particularly the United States Supreme Court case of Reynolds v United States, 98 U. S (1879) which the petitioner cited for the contention that the freedom of religion did not mandate the legal recognition of polygamy.
The Court could, and should, have addressed these decisions head-on, if for no other reason than to provide a fuller illumination of the meaning and scope of the constitutional provisions relied on by the petitioners.
In this regard, the Court would have had to contend with precisely the difficult questions which we reflected on in the last column in this series, that is to say: what are the constitutional limitations to the freedom of religion and the right to culture (or indeed, association)? Incidentally, the Constitutional Court has previously dealt with a variety of potentially problematic customary (and to an extent religious) practices, albeit in a rather haphazard manner.
As we noted in the last column, for instance, in Law and Advocacy for Women in Uganda (LAWU) v Attorney General (Constitutional Petition No.8 of 2007) the Court adopted a broad- brush approach to the culture of female genital cutting, outlawing it not only for minors (as indeed should be the case), but also with regard to adult women with the capacity to decide for themselves what is best for their own bodies.
Indeed, if many aspects of the Court’s reasoning in LAWU were to be scaled, male circumcision (as practised by certain ethnic and religious groups in Uganda) might itself be constitutionally suspect – a result that many in Uganda would think absurd.
The Constitutional Court adopted a more nuanced approach to the question of cultural rights on the one hand, and dignity and autonomy, on the other in the case of Mifumi (U) Ltd and Others v Attorney General and Another (Constitutional Appeal No.2 of 2014).
The petitioners in Mifumi invited the Court to find the custom of payment of ‘bride price’ to be unconstitutional as being, among other things, inconsistent with the rights, welfare and dignity of women.
Although the Court declined to do so (considering it to be not ‘payment’ for a human being but rather a token of appreciation from one family to another), it did consider that part of customary practice which required a refund of such ‘bride price’ on the dissolution of marriage to be, in fact, unconstitutional.
At the same time, even in Mifumi, Justice Tumwesigye started to articulate a kind of constitutional theory around harm as a limitation to customary practices but failed to follow through this idea in terms of reflecting on the degree of ‘harm’ an adult might lawfully acquiesce to, observing: ‘Few will doubt that bride price is still popular in Uganda.
Nevertheless, justification for the maintenance of a custom cannot be based on its popularity alone. It would still be unacceptable if it were harmful.’ [at page 25 of the decision].
Then we have the decision in Michael Aboneka v Watoto Church Ltd (Constitutional Petition No.9 of 2018) in which the Constitutional Court essentially deferred to church practice without seriously engaging with the question as to the appropriate balance between private or associational rules (of a religious institution, for example) and the supreme law of the land.
It is important for the Constitutional Court to have the courage of its convictions – and a consistency in its jurisprudence – as to the relevant constitutional standards which religious, cultural and other practices must be held to.
In Women’s Probono Initiative, the Constitutional Court placed significant emphasis on personal autonomy, while not venturing into the question as to the extent to which this very autonomy might allow an individual to constitutionally accept a degree of ‘harm’ to themselves.
On the other hand, in Fox Odoi and Others v Attorney General and Others (Consolidated Constitutional Petitions Nos 14, 15, 16 and 85 of 2023), the Constitutional Court – through convoluted and internally tortured logic – expressly subordinated individual autonomy to the dictates of societal opinion, creating a very dangerous precedent which would render the exercise of human rights subject to the vicissitudes of political majorities.
These (and other) decisions pull in very different, and arguably irreconcilable, directions – which is a most unsatisfactory situation. The decisions of the Constitutional Court should have a golden thread running through them, not (as seems to be the present position) a sisal rope pulling them apart.
In our view, it is possible to have a coherent approach to the various questions presented (historically and currently) before the Court, if one has regard to the letter and spirit of the Constitution (in its totality).
At the core of the Constitution is the idea of individual autonomy and freedom (the Constitutional Court got this right in Women’s Probono Initiative, and got it extremely wrong in Fox Odoi). That autonomy includes the right of adults to make bad decisions (the Constitutional Court got this implicitly right in Women’s Probono Initiative, and failed to appreciate it in LAWU).
The freedom of religion, and the rights to culture and association are important but can be constitutionally limited, including by considerations of (a certain degree of ) harm and human dignity (the Constitutional Court got this partly right in Mifumi, failed to properly take it into account in Michael Aboneka and dodged this somewhat in Women’s Probono Initiative).
This idea – of autonomy, rights and liberty – is precisely what is enshrined in the test (for the limitation of human rights) stipulated in Article 43 of the Constitution in its reference to ‘a free and democratic society’ [emphasis added].
For far too long (as the decision in Fox Odoi demonstrates) the Court has emphasized the ‘democratic’ (or majoritarian) of this test, at the expense of its emancipatory and libertarian limb.
The decision in Women’s Probono Initiative remains an important one – in terms of both the conclusions reached, and the reasoning adopted. At the same time, the lack of consistency between this decision and previous decisions of the same Court (including very recent ones such as that in Fox Odoi) invites – indeed forces – a broader conversation as to the integrity of constitutional interpretation in Uganda.
Ours, for better or for worse, is a legal system based on the doctrine of precedent. Citizens need to be able to predict what the courts will decide – based largely on the letter and spirit of the law, and on the jurisprudence of the courts themselves.
This imperative is even greater when it relates to the interpretation and application of the Constitution – the supreme law of the land. This is a question to which we shall return a few weeks from now.
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, International Law and Legal Philosophy.
