A Ugandan marriage ceremony known as ‘kuhingira’ at which the groom pays a ‘bride price’. The country’s Supreme Court has now ruled that refunding them if the marriage breaks up is unconstitutional. Credit: Wambi Michael/IPS

By Wambi Michael
KAMPALA, Aug 7 2015 (IPS)

After years of a protracted battle against Uganda’s “bride price” practice, the country’s Supreme Court this week ruled that husbands can no longer demand that it be returned in the event of dissolution of a customary marriage but has stopped short of declaring the practice itself unconstitutional.

In a country in which most marriages are customary, women’s rights activists have hailed the decision as a step in the right direction for greater equality in the marriage relationship but had hoped that the court would rule the bride price – or dowry – itself unconstitutional.

In Uganda, the bride price is the gift that is given as a token of appreciation by grooms to the families of their brides. Traditionally, it takes the forms of cows or goats, besides money, and some tribes have recently been demanding articles such as sofas and refrigerators among others.

The legal battle over “bride prices” started back in 2007 when MIFUMI, a non-governmental women’s rights organisation based in Kampala, filed a petition to Uganda’s Constitutional Court, seeking to have them declared unconstitutional.“Refund of the bride price connotes that a woman is on loan and can be returned and money recovered. This compromises the dignity of a woman" – Uganda’s Chief Justice Bert Katureebe

MIFUMI, whose work revolves around the protection of women and children experiencing violence and other forms of abuse, argues that if women are empowered they can rise above many of the cultural traditions, such as bride price, that hold them back, blocking their potential contribution to development.

The MIFUMI petition argued that the demand for and payment of bride price by the groom to the parents of the bride, as practised by many communities in Uganda, gives rise to conditions of inequality during marriage contrary to the country’s constitutional provisions which guarantee that men and women be accorded equal rights in marriage and its dissolution.

In 2010, however, the Constitutional Court ruled that the bride price was constitutional, with just one judge, Amos Twinomujuni (who has since died) dissenting, arguing that the main issue at stake was women’s equality and that the bride price was a source of domestic violence.

Undeterred, MIFUMI decided to appeal to the country’s Supreme Court and finally, in a 6-1 decision, the judges have ruled that the act of refunding the bride price is contrary to the country’s constitution regarding equality in contracting marriage, during marriage and in its dissolution.

Lead Justice Jotham Tumwesigye observed that it was unfair for the parents of the woman to be asked to refund the bride price after years of marriage and that it in any case it was unlikely that the parents of the bride would have kept anything involved in the bride price on hand for refunding.

Justice Tumwesigye further argued that one effect of the bride’s parents no longer having bride price goods or cash to refund could force a married woman into a situation of marital abuse for fear that her parents would be in trouble owing to their inability to refund the bride price.

Uganda’s Chief Justice Bert Katureebe, one of the six judges, ruled that “refund of the bride price connotes that a woman is on loan and can be returned and money recovered. This compromises the dignity of a woman.”

The judges of the Supreme Court unanimously agreed that referring to bridal gifts as bride price reduces its significance to a mere market value.

Solomy Awiidi, a legal officer with MIFUMI told IPS after the judgment that she was happy that ruling had partly struck off some of the cultural practice that has held women hostage in abusive marriages.

She said much as MIFUMI had wanted the whole issue of bride price totally abolished, the fact that court had ruled against refund was something to celebrate after 15 years of struggle against the practice.

“There are fathers and brothers of brides facing civil suit because they failed to return the bride price, while thousand if not millions of women across the country who have been abused because of failure to refund the bride price. This ruling will liberate many of them,” said Awiidi.

Kampala-based human rights lawyer Ladislaus Rwakafuzi, who has been the principal lawyer for the MIFUMI petition, told IPS: “We have not got everything we wanted but at least we know that people will start being cautious paying too much when they know there is going to be no refund when there is failure of the marriage.”

Rita Achiro, Executive Director of the Uganda Women’s Network (UWONET), told IPS that the ruling has shown that women of Uganda can use courts of law to fight against laws that oppress them.

Achiro also challenged the Ugandan government and Parliament to come up with a law to enforce the court decision, saying that demand for refund of the bride price will continue if government and Parliament do not enact a law criminalising bride price refunds.

She said there were precedents in which Ugandan courts had nullified laws discriminating against women but Parliament and government had failed to enact the laws needed enforce the judgments.

Achiro cited the March 2004 Constitutional Court ruling that struck down ten sections of the Divorce Law on the grounds that they contravened a clause in the constitution that guaranteed women and men equal rights.

Uganda’s Divorce Law had previously allowed men to leave their wives in cases of adultery, while women were not granted the same right because they had to prove their husbands guilty not only of adultery but also of a range of crimes including bigamy, sodomy, rape and desertion.

A panel of five constitutional judges unanimously upheld the view that grounds for divorce must apply equally to all parties in a marriage.  Women activists had hailed the judgment as a landmark ruling that would bring equality of the sexes but, eleven year later, no law has yet been enacted to enforce the ruling.

Edited by Phil Harris    

Fox Odoi, a ruling party MP, is one of the petitioners challenging Uganda’s draconian anti-gay law. He is pictured here on Tuesday Mar. 11 just as the petition was filed with Constitutional Court. Credit: Amy Fallon/IPS

By Amy Fallon
KAMPALA, Mar 13 2014 (IPS)

Human rights campaigners who filed a recent legal petition against Uganda’s draconian anti-gay law believe that they have a compelling case for its nullification. 

“Judges are human beings. But we are pretty sure we have made a compelling case for the nullification of the law and the judges will exercise their judicial minds to the law as presented before them [rather than pay attention to] public sentiments,” Secretary of the Uganda Law Society, Nicholas Opiyo, told IPS.“Personally I do not agree that we’re going to lose in the Constitutional Court and the Court of Appeal… We have a good case.” -- Fox Odoi, a ruling party MP and former legal advisor to Museveni

On Tuesday, Mar. 11, a coalition of campaigners filed a petition with Uganda’s Constitutional Court in Kampala in response to the Anti-Homosexuality Act 2014. President Yoweri Museveni signed the bill into law on Feb. 24.

The law strengthens penalties for homosexual acts, prescribing life imprisonment for “aggravated homosexuality” and criminalising the “promotion” of homosexuality. The team is seeking an injunction against the enforcement of the law.

Opiyo, who helped draft the petition, said the legal challenge “raises important constitutional and legal issues that the court must resolve satisfactorily.”

The petition was filed under the auspices of the Civil Society Coalition on Human Rights and Constitutional Law (CSCHRCL), a coalition of 50 indigenous civil society organisations advocating for non-discrimination.

It argues, among other things, that the anti-gay law “violates Ugandans’ constitutionally guaranteed right to: privacy, to be free from discrimination, dignity, to be free from cruel, inhuman and degrading treatment…”

The petitioners are also seeking a permanent injunction against media houses or any other organisations from publishing pictures, names, addresses or other details of lesbian, gay, bisexual, transexual and intersex (LGBTI) or suspected LGBTI persons.

On Feb. 25, just one day after Museveni signed the anti-gay law, Ugandan tabloid Red Pepper published a list of what it said were “Uganda’s 200 top homos”. A string of other sensational headlines in other editions of Red Pepper, and another tabloid Hello, ensued.

Geoffrey Ogwaro of CSCHRCL was named in a Mar. 1 issue of Red Pepper, which carried the front page headline “Ugandan homos form cabinet”. His photo was featured on page two.

Although the activist’s immediate family knowns that he is gay, he said his mum was still “heartbroken” after being shown the paper.

“She’s never really come to terms with it and when it became public it was really embarrassing for her,” Ogwaro said.

“She’s cooled down now but it was a bit of a shock to her.”

Opiyo said his “conservative guess” was that it could take “about six months” to come up. But he said that even then the public discourse surrounding the law, which is popular with most Ugandans, may “weigh on the minds of the judges.”

“We are under no illusion that this petition is the most popular petition. We know too well that the general public may be adverse to our petition and will seek to vilify the petitioners and their lawyers,” Opiyo said.

Among the petitioners is Fox Odoi, a ruling party MP and former legal advisor to Museveni who is the only legislator to speak out publicly against the law.

“I believe it’s irrational, it has no basis, it offends every human right that you can think about, it offends our constitution. It offends our treaty obligations of Uganda,” Odoi told IPS about the anti-gay law.

“As a citizen, as a legislator, as a human rights lawyer, I owe it to the people of Uganda to stand up and challenge it. Of course there’s a big political risk, this society is very homophobic and they’ll brand you all manner of names just because you stood up to speak for the minority. But in life you take a risk even waking up in your bed every day.”

“Personally I do not agree that we’re going to lose in the Constitutional Court and the Court of Appeal… We have a good case,” Odoi said.

Other petitioners include law professor Joe Oloka-Onyango, media personality Andrew Mwenda and former leader of the opposition Professor Morris Ogenga-Latigo.

A number of distinguished gay rights campaigners and Ugandan NGOs Human Rights Awareness and Promotion Forum (HRAPF) and the Centre for Health, Human Rights and Development (CEHURD) are also named in the petition.

Adrian Jjuuko, executive director of HRAPF, said there had been 10 cases of arrests of LGBTI and suspected LGBTI people since the law was passed by Parliament in December. There were also more than three cases of evictions of tenants by landlords who did not follow due process of the law.

Ugandan activists have vowed for years to challenge the law in court. Campaigners have already notched up two legal victories. In 2011 leading gay rights activist David Kato and two others won a case against now defunct tabloid Rolling Stone, which had called for homosexuals to be hanged. Weeks later Kato was murdered.

In 2008 two lesbians, Yvonne Oyoo and Victor Juliet Mukasa, were awarded 7,800 dollars by a judge who found their rights were violated when the pair was arrested and one of them was undressed by police.

Some activists are hopeful they could win again.

“I think court could work out, it’s usually very objective. It has been very objective in the other two cases that have been won,” Ogwaro of CSCHRCL said.

“However, there are going to be the usual delays because the judges will fear issuing the judgment and how it will be seen.”

The petitioners say that even if the Constitutional Court does not rule in their favour, it is not the end.

“We shall appeal to the Supreme Court. Uganda is [also] a signatory to the law that establishes the East African Community, there is a court and we shall explore that option. We shall keep fighting,” said Odoi.