15 é >RNEY GENERAL . KENNETH KAIGURU oui the judgment of the Constitutional 10, (Muleasa- Tilonyogo, D.CJ, Mj 14) in Constitutional Petition Ne 12 of 2007] MIFUMT (U) Ltd and 12 others petitioned the C (he marriage breaks down, unconstitutional, a. ~onstitutional Court dismissed the petition, hence this appeal, to 1 th§ Backeround to the appeal " (U) Lid, « Non-Governmental Organization and 8 women’s MIFUN , j the Const “ting in eastern Uganda, and 12 people petitioned the CO™ a 7 the Consti aides Articles 2(1) (2), 137(3) and 93(a) and (4) of the Comet mess) and rule 3 of the Constitutional Court (Petitions 10 (8.1, 91/2005) ‘shallenging the woristitutionality of ¢ price 88 a precondition to Contracting @-valid~cust ” cha ged “the "constitutionality of de ing essential yjre-requisite for the valid dissolution of a custome: ASQ) 1E Wes ‘the appellants’ contention that the custom of Practiced by several ethnie groups in Uganda offends © @Ohstitntion; That Article provides that marriage shall be a m3 * claim: ‘fee consent of a man and a woman intending to marry. The oe entered into with the further contended that the demand A fx bride price an to-be married portrays her as an article in a market ——— ere thus prayed ‘the Constitutional Court to declare the - ° demanding and paying, and also of demanding refund aaa ‘ olution of customary marriage, ‘unconstitutional. 2Several affidavits j ing that of Felicity Aru UMI (U) Ld. and second respondents ustom and practice of decide to co er choice to be by vith one member of the cour dismissed the petition, holding that the marriag and practice of paying bride fund of the same, were moi nts lodged: this ice, and demanding ri with the decision, the appell roun‘ls of Appeals The appellants filed 12 fo 7 lants filed 12 grounds of appeal which their eounsel combined nae brow d groups in his written submissions. Ground 1, 2 and. 3 Were effec clea i the learned Justices of the Constitutional Court erred in Jaw and rice and i i to make a finding that c mm of pay : the court should | judi Grounds 4, 5, 6 and 7 were to the effect thi astices of the ake a declaration that the Constitutional Court erred in law when they dail demand: f demand f free consent of persons cle 31(3) of the ; and payment of, bride price fetters the intending to ma : i many or leave @ marriage it violation of Constitutional ¢ the demand for a refund. of fact and law, that Srounds 8 and 9 Were to the effect that the learned Justices of the brred in law when they declined to éeciar le price unconstitutional, despite their finding 2s « matter oF Ko the practice undermines the dignity of a woman contrary to Article 33(6) of the lead to domestic violence. (4) of the Constitution and decided that aggrieved High Court under Article $0(1), despite their finding'e court finds that the eusiem oF paying bride price nda by all cultures. They and practice of demanding and ‘@ry condition for a valid customary marriage is that the custom of demanding noticed anc * is commonly practiced in Uga @ for declarations that the custom ide price as a 1 tional, and equally for refund of bride tion for the valid dissolution of customary marriage is fuuzi and Mr Emmamt Mutesi, Principal s nd 2nd respondents respectively. Counsel for the respondent and the 2™ respondent himself filed missions, unsel for the 1 pertaining to this appeal, I mon use of ler it necessary to the term “bride price” to denote the n by the gi room’s parents to the bride’s parents in the term used throughout the appellants” documents led in the Constitutj i in the appellants’ counsel’s submissions. The 1* responder use of the same term in her court documents and ons. Iso maintained the The 2 respondent, however, objected to the use of the term. He argued that the 30 term was not appropriate as there was no sale or purchase of a bride in 5 Ocheng tepresented the titutional Court and this court, The term is also ~ ate Attorney, and Ms. Sarahcustom, "ges in Uganda. He stated that the term “enjugano” which used in to denote the property that a groom gives to the parents the you riage has no English equivalent, she then was) and ‘h Justice Mpagi-Bahigeine (14) (as she then was) \) (as he then wa: objected to the use of the term. They were —View that the term “bride price” wag eotned-by-colonialists-because_o ; ini of ine LO.appreciate the Aftican customary marriage and the significance “bride price” to ‘hat is given by the groom’s parents to the bride's parents. ORE Rae eaually wong Thers is no market in ‘Uganda or Attica for that matter where brides . the bride’s kin and given by the ise are purchased. Property may be demanded by Groom's parents in customary marriage, but it is 20. wrong to call this a “price” for a bride. i ‘estomary marriage was not This was for tw; ‘© reasons: their objection to Chief Justice Sir Robert Hamilton in Rex v. at ed: “I know no word that correctly describes wife Purchase’ is not altogether: satisfactory, but‘Sar Marriage ii promoted | ‘propriate use of the term “bride price”, Dr Yusufu Mpairwe is d suppor of the 2" respond answer to the petition (a) No bride is offered for sale and no bride is sold or bought ...... Vo one gives up on e's daughter. One's daughter remain: 1) acquires a new status of a wife.” Ss One's he mere! rite Aftican customary marriage © term “bride price” because of and Some judgments nave avoided eness, For’ exainple, Preferred to call it “bride wealth.” Others have : se it s judge ‘age payment”, marriage considerati w Reform Commission in its “Stuy Report on Marriage and in Uganda”, Publication No. 2 2, 2000 used the term “Marriage gifts”, T will use the term “bride price” in this judgment since = - re % & new term at this stage, I believe, is bound te lead to difficulties a se” n the record of appeal and sub: ions of counsel used it. ~ o fusion when referring to statements contained in the record. My use of ce price” should, however, not be interpreted to mean that 1 conc continued use. Consideration i the issues unds 1, 2 and 3: Whether the Constitutional Court erred by eclining_to take judicial notice of the custom of bride price in % : 30 customary marriage and its refund when the marriage breaks down. 7ge < eLearn: og i. HRAMed counsel for the appellants argued that the Constitutiondl ya ce A ; «WP Nout” When it declined to take judicial notice of the custom of bride aken judicial notice OFF nances and reguiati 5 °K ie contended that the court should have ordi cerning y” ed by a number in Uganda ¢ ent (To! $0 oi? : 0 FF fom of paying bride price. He cited the Local Govers Ws A 7 : ety-(Regutation-of the-Exchange of Bridal Gifts) Ordinance 4 ow 2009, ™ P 1 a The Teso Bi ‘aw, Legal Notice No. 252 of 1959, The B co No, 176 of 1960 and the Sebei Bridal Law, I h, Marringes and Death L ugisiu Bride Price Law, I Notice No. 176 of 1960 as ¢ Secondly, he argued that the courts themselves have taken judicial notice WGP the custom of paying bride price. He cited cases such as Agerey Owori Ws. Rosette Tagire HCCS No. 178/2000, in which it was held that noConstitutional Court should not have disregarded the affidavits witho ‘al casons for not doing so » he submitted counsel for the. 1% respondent, in her submissions, and its refund in case of guerra. Uganda and that courts have ‘Without the requirement for its further proof, conceded that its dissolution ‘were g of bride price uSwriiten submissions, however, the 2° resondent strongly disagreed tstom of paying bride Price and its refund-had-to a by evidence because the practice is different in di of Uganda, He objected to the appellants’ counsel's j iat eco Presented at the hearing of the _ diary a ae cases cited | by the appellants’ ‘pply to all cultures in Uganda, he cu ifferent cultures . counsel did not and that customs and cultures were specific to a particular ethnic group and that the: Y were not uniform to the /hole country. - He agreed with what Justice Mpagi - Bahigeine, JA, stated in her Judgment, that the custom of Paying bride price has to be proved ‘nce it keeps changing with time. He submitted that Section 15 of the , Judicature Act permits the courts to apply, and any person to benefit from, “4 & Custom unless the custom has been declared to be repugnant to natur justice, equity and good conscience, and not ee with written law,contended further that although many affidavits were sworn alk women were suffering on account of payment of bride price by no single affidavit which was filed to prove the e1 in his view, the custom was not proved in accordance with of evidence, he Constitutional Court wrote separate judgments though Mukasa~ Kikonyogo (as she was then) who the lead judgment. In her gment, she stated t the practice of m ji ¢ ee d diffuse and not easy to © price being customary was unwritten an: ascertain. She did not agree that the custom was notorious enough for the Courts to take judicial Notice of it, Justice Mpagi ~Bahigeine, JA (as she then was) stated in her judgment that judges must teach a decision to acbride, In most African Customary marriages, he stated, a man | money Property (cows, pigs, goats, ©.t.C.) specified and d ives of the bride in order to marry Ys a iad 5 ae Justice Byamugisha, JA, can did not either expressly or by > address the issue as to whether or not the o oe: e custom of paying bride Bo 1 ly noticed, She seems to have confined herself to the ary marriage and the rites that go with it are protected by | ition and should not be abolished withgut she consent of | acknowledges the existence ae the custom, i ali = 7 ustice Kavuma, JA, discussed the issue at great length in his judgment. = 2! § He stated that European judges who manned the courts during the & = a dministration required African customs to be strict aed & iy aa (Syn stated that Kenya and Tanzania had passed legislation which no. longer ine ines fgwires strict proof of African customs in court. He mentioned AE rahe Local Courts Ordinance, 1961, and Section 60(a) ce Kenya. ‘ > Actin this regard. qi . : ¥ x : aes e eae That aside, Justice Kavuma, JA, was of the view thet the fi 9 arri oe id ustom: mg age ° practice of bride attend pa ary Sa subsidiary legis] 5 : court decisions. His conclusion was tl oo Ss e fs é > Ate o ot ff O.,” Se by Se raecustomary marriage in Uganda is so well known and established lires no formal proof in court. Having considered the different judgments of the learned Justices of t val Court, it is mot correct, in my view, to state, as he Constitutional Co} did in their grounds of appeal, th: o take judicial notice of the custom ant practice-of bride pri nary marriage. While it is true that Deputy Chief Justice Mukasa ~ Cikonyogo and Justice Mpagi - Bahigeine expressly stated in their \} 05 respective judgments that the custom of bride price was not notorious judicial notice of itytheir opinion does not cm enough for the court to take is seem to have been shared by other Justices of the Constitutional Court. o ‘Three Justices out of five acknowledged, expressly or by implication, the Existence of the custom. of Jnterestingly, even the two Justices who clearly stated that they de ne # take ae notice of the custom appear in their judgments tobride and 9 groom to enter into the bride price arrangeme man and a woman have the constitutional Fight i choose ide price option... usticeMpagi — Bahigeine also stated in her judgment as follows; “bride price’ is a misnomer eoined b not appreciate the meaning and of certain cultural rights and ceremonies which +. that the term ts who did ¢ © include the exchange of intrinsically “nique gifts which are > merely symbolic as a sine qua non of a marriage. These are a co > form of appreciation to the bride's Parents/guardians for her e nurturing and upbringing... this valued customary practice should’ be clearly atstingusstel Ram what is obtaining these days... hese statements, to me, clearly show that the two learned: Justices y Oy! stknowledged the existence of the custom of bride price in customary e narriage. They knew what bride price consisted of, to whom it was paid the reasons behind its payment. They did not dismiss the petition - os secause the appellants failed to prove the custom, Instead they Cone \ apy ie yt bees in their view, it did not violate any provisions of fe © £ Sfstiution 2 € 2 vey 4 at 3G that as it may, since the appellants made the issue of the Constit Mon rath declining to take. Jacicla ne of the custom and. 1038+ it, I will start by considering the objection rais that the subsi counsel were mi proceed to cor the 2% respondent in his written submissions legislation and case law cited by the appellants’ evidence and information that was not presented at the hearing of peal. He cited ‘Tanganyika held that an” tition, and should not be considered in the ap} armere vs. Unyamyiezt (1960) EA 620 where the court on fo allow a new point to be-taken-on- app! a course only when it is assured that full justice can be it will permit done to the parties. Je also cited the Privy Council decision in United, Marketing Co. Ltd Vs. Hasham Kara (1963) EA 276 where Lord Hodson stated: “Their Lordships would not depart from their practice of tefusing to allow a be argued unless satisfied that the evidence upon point not taken before to which they are asked to decide establishes beyond doubt that the facts, if fully investigated, would have supported the new plea.” The 2" respondent is ety not pis in his argument ee theha F ad an opportunity to obtain the authorities presented to OOUFE = lh nable time to enable him prepare his ease. This is Hole nd tis The 2™ respondent also argued that the subsidiary legislation, ordinance & and case law cited, and even affidavits swom by the petitioners, mainly nats regi i apply to. al o se originate from the eastern Tegion of Uganda and do not apply 10 mM ‘borit ¢ > cultures in Uganda. It was also the 2 respondent's argument that br’ 2 ante be given a uniform interpretation because the practice a520 different cultures in Uganda and hence courts ice of it, ue that there was a preponderance of subsidiary legislation from part of the country which can be ¢ Jained by the fact ; price contributes to domestic violehce against women in alll ¢ u iat practice it, and they did not discharge this burden. it is important that in parts of the country where men his. customwhich the population_as_a whole seem ta cher together with local governments, pass See which — ¢ strictly enforced to stop this abuse. conclude on this issue, it is my view that payment of bride price in ry age is overrated by the appellants as a significant factor in the promotion of inequality and violence against women. 1 would therefore, decline to os the declaration a for iy theESE a nsticutional right to enter itp ¢ demands of a third party for p g the couple’s free Consent te marry, the court had susp ined to declare the custom unconstitutional in so far a4 je 31(3) of the Constitution, Accordingly, counsel prayed court tod hat th A of demand for payment of bride price fetters free consent of ntending to marry, thereby violating Article 31(3) of the Constitution!” ui : in their reply, counsel for the 1* respondent supported the Co Court, and submitted that Deputy Chief Justice Mukasa-Ki rightly held in her judgment that the Constitution does not p voluntary, mutual agreement between a bride and a groom to the bride price arrangement because a man and | woman have iste to customary marriage ot a would contravene their right to enter the Constitution, as persons could 1Nterpreted Article 31¢ ight to enter into marriage not being third party for Payment of bride Price, and 3 free consent to marry, the court had surprisi custom unconstitutional in so far as it viola the Constitution fetters free Consent o: f persons. violating Article 3 1(3) of the Constitution. Counsel for the 1: and submitted that Deputy Chief Justi held in her judgment that the Consiim voluntary, mutual agreement between a the bride price : it2™ respondent also agreed with the statement of Justice eae J * bride price facilitates rather than hi : ‘inders the consent of perties to nary marriage. The intention of the custom is to offer an. opportunity clatives to express gratitude and appreciation forthe in such a way as to be worthy of becoming the the groom. The custom is also important for the stability of the” om and his ng, of the bi istomary marriage, 2" appellant contended. sreoment--violetes_Article 31.3)-0f the s gent upon the demands of a third party ¢ a contract between two adults and : aa 5 right to marry is contin, sayment of bride price Tf martiage is of bride price is a condition precedent to a valid © es the free c sEnene ge, then the payment of bride price undermin: rarriag ae bride and groom because the demand for bride price i parties, counsel argued. Sounsel farther argued that iti wishing to avoid payment of bride the Marriage of Africans Act or the marriage between Africans under the by all formalities pee mariage be preceded established, usual or customary | for Africas in religi ;‘row instance ontravengs voluntarily enter into a ma e ionship fo he clear: “Ng the man and 1 into with woman intend ed Deputy Ch lief 3° Which people are fra © to use. The m ore #¢ catlier when she said: “s..the cultural Practice is not barre per se URconstitutional,el for the 1“ respondent argued in her ants did not provide evidence to show that have adduced evidence to show how the demant men or women of their consent to Punts ‘Thewas on that ground that she declined to grant the petitioners’ request for Price be declared unconstitutional, 1 entirely agree aration that bride el for the 1° respondent argued in her submissions that ‘tt ants did not provide evidence to show that there are custo ges in Uganda whereby a valid customary mariage may ndertaken by the payment of bride price without the consent of the | agree with learned counsel that the appellants did net do so. They s have adduced evidence to show how the demands of third parties di men or women of their consent to marry. The appellants should man) to marry Y (a woman) or vice versa, without Xs or Y"s ¢ because of bride price demanded by third parties (relatives). Orede da reflection oor enforcement of the lat titul tion prohibits marriage e age of 18 years, and 618 ears 6-a-maximum s imprisonment and even to death where a person is below | Justice Kavuma JA, shows how in Kiganda culture the y be true that many people who contract their marriages in church r the Marriage of Africans Act begin with traditional ceremoniés fh may involve onnriiaies with cultural rites and marriage demanding, as a conditi of consent from the Africans Acta price, prohibitionCourt did not the parties” stion that the © Aine to grant @ deci consent of 13) of the 4 Grounds 8 and % Whether the learned Justices of the Constitutional ‘Court erred in Jaw when they held that it was not e practice ofdemand for refund of bride price unconstitutional. essential to declare theinsel argued that Uganda had ‘Obligations unde: T (a) Domestic Law (b) Protocol, to Protect the rights of 20(2) and 33(3) of the Constitution hold and protect women. and their Court had an obligation to make a on the Constitutionality of refund of bride price, given ‘its on the manner in which the refund violates Articles 31 of the Constitution. ational Law and (c) Regional 1. Under domestic law, Articles all organs of @overnment to w 8. Therefore, the Constitutional ration (1) and 33 usel argued further that Uganda has an obligation under Intemational to take appropriate measures to modify or abolish existing regulations, customs and practices which constitute discrimination against women under Article 2(f) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) which Uganda ied on 22%4 July 1985, ; On eich. counsel cited the ietcay to the African Charter 1 and Peoples’ Rights on the Rights of Women in Africa 2003) » a state party to outlaw cultural practices and traditions affect the ienity ee ‘women. Uganda signed |nt did not make submissions of this issue 4 to prove that at the appellants faile the dignity of @ all the people of Ugandi se a custom | lo woman. itten. for rent cultures; that becau to accommodate diffe » abused by a few individuals docs not warrant its being decla systitutional as in other cultures it may be treasured. colesae OD » ontended that customary law is constantly changing and it would be rded an opportunity to be heard. is noteworthy that on the issue of refund of bride price, the istitutional Court agreeing with the petitioners found that the demand : refund of bride price undermines the dignity of a woman and violates a oman’s entitlement to equal rights with the man in violation of be) 31(1) and 33 of the Constitution. tukasa~ Kigonyoee, DCI, stated in her lead judgment:nal Court against hen is, if the es a Woman?s—am fund of bride price unconstitutic dversely affected b: inal or civil proceedings ag bride price? ‘id not offer any explanation for this, and therefore, I find that c “1 ‘or the appellants was justified to complain about this omission. The Constitutional Court having found that the custom and Practice of tolund of bride price violates Women’s constitutional rights, should have _ telen the next logical Step to declare the custom unconstitu nal. ups in Uganda, apart from the Baganda ethnic group, stom of refund of bride tice at thi marriage. € dissolution of Refund of bride price has been covered in several eks and journals written on marriage in Uganda, See, for example, “ilerriage and Divorce in Uganda” by H.E Morris, the Uganda Journal, Sept. 1960, “The Chiga of Western Uganda” by Mi ‘ay Mandelbaum (MA, Ph.d (Colur T ei ), 1957, and “The Lango a Niloti @ of Uganda” by 1934, among others. Ther ase law which has taken izance of the custom. See, for example Nemezio Aiiva vs Sabinainziva Aviva, Divorce cause No. 8 of 1973 and Mu jhinduka_ys. abere, Civil Suit No, 1 of 1971 is affidavit evidence on record which was not contradicted to show at the custom of refund of bride price is oppressive to women. Okia ‘adoki, an Atesot, deponed, for example, that his daughter, Amuge Ann » was married customarily for 25 years. She produced 7 children ‘th her husband. Misunderstandings developed between her and her uusband and the husband started subjecting her to beatings and eventually chased-her-from her matrimonial home. He then filed a suit in Pallisa chief Magistrate’s Court for refund of bride price and the court ordered he deponent to refund the cows and the Kanzu (tunic) which the husband had paid as bride price. Since he did not have cows, a warrant of attachment was issued by the court to sell one of his pieces of land. Tororo deponed that she was married to Okumu ‘aged 15 years, Her hnsband paid 1 cow and 2 goatsHy - nstitutes gifts to the Parents of the re of her irl for nurturing and taking. geod 4p ‘o her marriage, and being gifts it should not be refunded. the custom completely ignores the contribution of the arriage up to the time of its break down. Her domestic our and the children, she has produced in the marriage are in d. 1 respectfully do not agree with the Tespondent that when the marriage breaks @ woman’s contribution should be subjected te valuation, taking ‘o account the length of the tarriage, the number of children the woman 1s produced in the Marriage, e.tc,, if any, any ethnic groups all ignore ‘agestion proposed by the 2m Jown, » on the basis of which the refund should be determined. If'a man is not subjected to valuation for the refund of bridal gifts Cemihingiro” in Runyankole) when the marriage breaks : down, it is not right or just ‘that a woman should be subjected to valuation. _ 0 icle 31(1) which provides that “mea and women ee 1 and above have the right to marry and to fe led to equal rights in marriage, during m ies ’ :rriages in which bride price has exchange the practice is that on divorce the husband is entitled te fund of the bride price. On many occasions the father or es of the wife will have spent the bride price and on to refund it at the time when the wife p the woman in an abusive marital relationship for fear that he y be put into trouble owing to their inability to refund ‘ price, or that her parents may not welcomoot NS ould, therefore, declare that the d of bride price after the bre: stit custom and practice of demand for akdown of a customary marriage is ational as it violates Articles 3116) and 31(1). It should cingly be prohibited under Article 32(2) of the Constitution, appellant's grounds 8 and 9 accordingly succeed, Ground 12: Whether the learned Justices of the Constitutional Cou rt erred when they found that the unfavourable aspects of the custom of bride price may be remedied through redress under any other law, and not through declarations, ; custom of tefund of bride price which sor a but at the same time went on to holdA ie should be prohibited. The appellants? grounds 8 and 9, therefore, ueceed Ground 12, after my finding thet the custom of refund of bride S Unconstitutional and after granting the declaration the ppellants sought, I find that this ground ceases to be ait issue, ccore’ ly, it ls my view that this appeal partly succeeds and partly fails, as 1 above: 5 7 (Grmatier oF public interest, | would order that eachPPEAL NO. 02 OF 2010 MIFUML(U) & 32 OTHERSAWW ~ . » om and practice ae Ee of demand and payment of bride pric sine qua an of a valid customary rerelage ranted By i ganda including but notl oth res in but not limited to the Japadhola stern Upi i f acted < eae Langi found in Northern Uganda, and found in Western Uganda is unconstitutional : efund of bride price as « condition si practiced by i to the Japadhola Northern Uganda, and 1a! because ¢ ustom and practice of Fr on of «valid dissolution ofa customary bes in Uganda, including but not Ir stern Uganda), the Langi found in inkole found in Western Uganda is unconstifution e bride from jent toa valid 31(3) of the be entered into wile The demand for bride price by parents of prospective sons-in-law as a condition pre customary marriage is contrary 10 Ar stitution that provides that mar jhe free consent of the man and a wor e demand for bride price m tingent upon the akes te con because th demands of 4 persons who intend to marry cor third party; remanded by ot their Jience 5 tweert mer The payment of bride price by men for their wives as d custom from several tribes in Uganda leads men to tre women as near possessions from whom m mun bed extracted, thus perpetuating conditions of inequality betweer and worneny prohibited by article 21) & (2 of the Constitutiol gua! before and of Uganda, which provides that ail pet under the laws nd of bride pri ne demand for refi 5 . i customary marriage 1 contrary 10 he ae 28 ation of Verena TAT a the dissolution ofa _ tie Manage 320 Fe i fa iF es with the exercise of He free consent of the parties as if interfer 1o a marriages ‘phe demand fo ns-in-law # ons are @ ice aS condition precedent to 5 vy x bride price by parents of the bride from 7 3 ective $0! i ch as it portrays the w ee: fe amourts (0 degrading treatment, dia in Article 24, which sce in a market for sal eat ibit tion id see Constintion LD geil with dignily. s that every persons 51 as ait guarantee; ne following declarations from the Constitutional Cota Jemand and payment of bride price as @ fid customary marriage prs acticed by : Uganda is unconstitutional; of refund of bride price as a condition sine qua olution of a customary marriage practiced by several nconstitutional; 0 the issue one the custons A precedent fo a customary marriage and the bride price ay @ condition precedent toa valid: narriage is jadicially noticed requiring no further nn f 52-arned Justices of the Constitutio, nal Court erred whi failed © issue whether bride pri, ee ; price means di cultteres of Uganda such that Court ci nt aaa rpretation of the custom, ‘cannot make a uniform Bi cf Justices ase Constitutional Court erred when they, failed © the tssue ¥ t ice is cide Tee aT her bride price is commonly practiced in Uganda ed Justices of the Constitutional Court erred when they found ustom of bride price does nat promote inequality in marriage y to Art 21(1) (2) & (3) of the Constitution. orned Justices of the Constitutional Court erred when they found le price | does not fetter free consent of persons intending to ‘y in violation of Art 31(3) of the Constitution. ce learned Justices of the Constitutional Court erred when they found ut bride price does not perpetuate conditions of inequality in marriage irary to Art 31(3) (b) of the Constitution. 7 The learned Justices of the Constitutional Court erret! when they found : jhat the refund of bride price does not fetter the free will of a person intending to leave a marriage contrary to Art-31(3). i isvituatic rt a e hey found » learned Justices of the Constitutional Court erred when they fot ict bride price d ‘commodlify a women thus lowering her dignity 2 contra to which guarantees a woman's dignity of the person. Constitutional Court erred when they. found cause domestic violence. sarioal Court erred when they fourrd marry may opt norio marry under custormary payment of bride price. of ' ned the Constitutional Court erred when they found g v = under customary law must have consented merry a w custom of payment of bride price, = i» Constitutional Court erred when they foun ie aspects of the cusiom of bride price may be s wader any ether law and not through this Court finds that: arice is a custom judieially noticed requiring no further pro nder of the appeal. With aie git the cal. My reasoning and findings appear in this j 54Ne aa ution of this Appeal ence the consideration of this appeal, I wish to point out that 1 have submissions of beth parties which were fully reflected in the lead of Tumwesigye, JSC. 1 will not repest them in this judgment but only ‘ubmissions and arguments where I find it necessary to do so. the 7 oceed to consider the metits of this appeal, important to point out i @ discuss the provisions of the law that are of critical importance to resolving, ¢ issues raised by this appeal, ‘ate et the onset that I am fully aware that Article 37 of our i ion grants Ugandan citizens the right to enjoy and practice their culture 15 as follows: gi , plicable to belong to, enjoy, practise, : any culture, cultural institution, c gligion in community with others. profess; ma language, Constitution entrenches the supremacy 20 law of Uganda and shall have and persons throughout Ugandtions which are against the dignity, which undermine their status, are tion.” ¢ obligation imposed on the State under Objective 7 1 provides as follows { promote aud preserve those cultural values. and praviices which enhance the dignity and well-being of Ugandans.”e and that it is thi i 2 itis this characteristic that di: stinguishes it fr marriage recognized in Uganda. “ vas argued on bt cated n behalf of the respondents. and the majority Justices in " 1al Court agreed with them that bride price is paid as appreciation - the gro ide’ ‘i groom to be to the bride’s parents/guardians for the efforts they put end grooming the bride to be, rere is no si jtuti isi is no single constitutional provision which gives any right whatsoever to ter intending to any parent to put a price (in form of bride price) on a dz marry either to tecover orto demand to be “appreciat is prospective som in law or his future son in law's parents for rai cating, feeding their a daughter intending to be daughter or for any other expenses incurred towards married. Appreciation, in my view, isa social concept which cannot be legally enforced. It is even worse where the party seeking to enforce itis 3" party to the marriage. price is dem: anded by the parents as am appreciation icte 31(4) of the Constitution of > The claims that bri 20 forraising her actually runs contrary to Art which provide as follows: Uganda, » 1] js the right and duty of parents children.” jo care for and bring up their 95 Article 34(1) on the other hand provides as follows: os “Subject to laws enacted in their pest interests, children shall have the right to know and be cared for by their parents or those eniitled by law io bring them up.”nstitulion practices that we practice profi cultural pra=, Tt shou so be noted that Article 45 of the Constitution also provides that the rights, duties, declarations and guarantees relating to fundamental and other human rights and freedoms that are specifically mentioned in the Constitution shall not exclude those which were not specifically mentioned therein : im Article 45 of the Constitution, it should also be remembered that Apart gnatory to all the major human rights Conventions which require it 10 © Uganda is a si to put in place laws and measures that prevent discrimination and perpetuate inequelity. The Conve! non the Eimination of Alt Forms of Women (CEDAW) provides but one example of such Convention imposing ~ ; obligations on Uganda to take action in Tine with the prayers made in this | Petition. Under Article 2 (H of this Convention, Uganda as @ state party ned discrimination against women in all its forms, and agreed to: ‘pursue by all appropriate means and without delay @ policy of climinating discrimination ageinst worren and, to this end, undertake to rake all appropriate measures, including tegistation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women. eH Uganda also made specific undertakings under the CEDAW Con tackle discrimination occurting at the time of contracting the n - ay 2 Ra h provides as 15 conde 20 ies sh: ic he CEDAW Convention, Uganda is also ies during, hat women enjoy equal rights and respon: —_— ae tk all appropriate measures to eliminate st women in all matters relating to marriage and particular shalt ensure, ona basis of equality of ; ‘omen the same rights and responsibilities during marriage ; dissolution. 2 rties shat « learned majority Justices of the Constitutional Court erred in #5 sawand tect when they failed to consider the constitutional challenges to bride price as alleged by the Petitioners vis a xu the cited constitutional provisions. I find tha: the practice of voluntary ex s . bride to be and their spective Constitution hed on ithe principles of ae peace, Jemocracy, freedons, social justice and progress.1 substance a i colonial reli elewaiettnam ‘elic whereby the traditi ii pp Seat ae head of SN aa he ; . le of bein; tei out a ep PGa 1g a mere appenda; rth ian .ge of the husband, Z ically aBeeeHPh ce. This concept of the family : equal mE in recent decades, Marriage a Sted rd i fev ob eats huskonadl ond wl now viewed as an : and wife. Still, the old ideas and patterns persist, a: , as do their ps; it hucneeel psychological and eco mic ramificatic 1 withstanding, women are entitled to fu NO ee eee henge ; , It equality in res) 7 - ie ee pees fey, their position within the paibieaieie women of the age n pee femly so proclaims Article 33(1): Men and veda ge of eighteen years and abave, have the righi to marry vite in a family and are entitled to equal rights in marriage, during marriage and at its dissolution. - te It is well to remember that the rights of wo! interdependent human rights which are ¢ qi country and that the paramount p fi men are inalienable, ial in the development of f human rights and all without discrimination. urpose damental freedoms is their enjoyment 5 The concept of equality in the 1995 Constitution is founded on the idea that it is generally wrong and unacceptable to discriminate against people on the basis of personal characteristics such as their race oF gender. Legal rules, however, continue to be made gender neutral so +h so that there are 10 more husbands oF wives, only spouses This step is in the right direction. It is further intportant to note ane appreciate that the 1995 Constitution is the most liberal document in the area of women's rights than any other Constitution South of the Sahara... It is fully in consonance with the International and Regional Instruments relating (0 gender issites. (The Convention on the Elimination of All forms of Discrimination Against Women (EE. which is the women's Bill of Rights and the Maputo Protecol on the Rights of Women in Africa [2003))- Be that-as it may, ils. ~ implementation has not matched its spirit, There is urgent need for Parliament to enact the operational Jaws and scrape all the inconsistent jaws so that the right to equality ceases to be ait illusion but translates | into real substantial equality based on the reality of a woman 'g life, but where Parliament procrastinates, the courts of lew being the bulwark 0 st ‘61I the void when called upot to do so or 0 fil uid not ies the occasion ¢ r¢ not only tue to the need to acted under the nt that bride price and refund es contr nination oceurtir 10 Marrioge Act, but are also eto the sci acct rid before a valid y marriage ean be contracted require its refund. « dissolved, in those communities whieh Section 1(b) of the Customary Marriages (Registration) Act Cap 248 Laws of Uganda defines a customary snartiage as. follows: rding to the rites of an African. community *q marriage celebrated acco and one of the parties io hich is a member of that community, or ay a ote aiia called upon to da S000 Eee yh id whet not hesitate to fill the V0 ion aris " pecasi vations were not only true to the need. to ted under the {ivoree in Ir s contractes M Act plicable to the legal eau ent that bride price 4 ec contracted and refund 5 d customary mariage can 6 minunities which req he Customary Marriages (Registration) Act, Cap 248 Laws of dq defines a customary marriage 45 follows: according to the rites of an African community 2 “iq marriage celebrated and one of the patties to whieh is amember of that conimunity, oF any a Lilt Abi ommunit os a girl has taken place. The groom. In other © the giving away ofthe after 62with other a: ts of li: 3 a ‘Spects of life that relate to food, dress, language, ti a msti . : j — ‘stitutes culture. From the time Ugandans came into Ac th tort Avil i i ant ms of civilizations introduced by Arabs, Europeans and sians, among others, they have been adopting new ways of living, feeding, Jressing up, mode of communication, ete. therefore not pers i ‘a re not persuaded that by this Court striking out the custom ofagitl’s parents demandi 7 i a re her P anding for bride price from her husband to ~be, before allowing, to get marrit i i i g arried, will necessarily result in a denial of their rights to practice their culture enshrined in Article 37. Tt should further be recalled that the appellants did not seek from the 5 Constitutional Court an order to declare that customary marriages are the appellants only challenged the aspect that makes. - of the bride price as @ condition precedent to the conn aaa ofa arrlage, aS swell as the aspect that makes the refund of bride © mary marriages among some i ‘unconstitutional. Rather, the payment valid customary m: i price a condition precedent for dissolution of custo! tribes in Uganda. Furthermore, it should also be noted Ugandans seeking to practice th d still be able t0 voluntarily exchange marriage gifts before, during or aft > of the customary marriage between the groom to be and afives and vice versa. s ich a volu e2{ the appeliant’s submissions that among other price by a woman’s parents negatively ¢ man and woman intended to marry. to the leamed Justices, I wish to respectfully differ. The issue .o the proposed marriage requires, in my view, a deeper : its outward expression, than wes given to it by the leamed Justices of t tutional Court. Their Lordships argued that since there are many ways of contracting a marriage in Uganda which are permitted by law, jes can and de freely choose to contract a customary marriage in preference all wailable options which do not require bride price payment.tors, Whigh | es auntie in Buganda, at avery carly stage m is ed found someone they would like to marry. rents’ blessing, Even though it is not a legal requirement for ‘or civil marriages, parems’ blessing will be culturally and socially , eVen where the couple have already expressed a preference to cont n a. Sati, jt is also important for courts to recognize the subtle { ‘uence and authority parents.and.close family members, espvr influetice Of yer to enter into that jn extreme paid, sometimes: fore not surprising that forced ly of girls who have ¢ of age in this country are gh and literacy levels marriages, especla’ yval areas where poverty Jevels ere Hut ¢ was already Deen ce af age! Tris there! he becar cases © 1g prot yet oom _ not uncommon inn puuch lower than in ban ares atively’ g where the parties to the mariage x i object to the price demanded has ro! ¥ e Psilies" high bride price bd out of choice, but demands, Such « marriage may not Out of necessity and sometimes even ou a in all the possible scenarios I have highlighted, t , 4 the girls’ family will have fettered the free consent of a tend a ‘hg to marry, contrary to Article 31(3) of our Constitution, ‘eir subsequent marriages will not be an exercise of thelr f to marry, contrary te © Article 31(3) of the Constitution. . bride pr woman because th Thetefore, with due respect to the learned Justices of Constitutional that they erred when they held that the demand and payment of brid before contracting a customary marriage does not fetter the free Parties to the marriage. I wish to point out that not all tribes in Ug custom of demanding refund of bride price at the end of a euston 15 However, in my view, this should not have stopped the from considering and determining whether the custom of r 20 constitutional in those tribes that practice that culture. Iwill now turn to consider the second issue arising under - appeal: shat is whether the demand for a refund of bri dissolution of a customary marriage does not fetter a eee. i awe 5 remain in the marriage. f ‘om their pleadings, the appellants relied who had suffered dire consequences asindeed practic i by some tribes. + elf on the impact of the cust Pe court to pronounce i those communities that practice it. ment of bride pric promotes: nequality in marriage? I will now proceed to consider grounds 4, 6,8 and9 of appeal. The issue that 5 it prounds of appeal raise 18 whether the demand and payment of bride sntracting a customary marriage and the demand for a refund of lity ‘ore the dissolution of a customary mariage promotes tn and dignity ‘of women in marriag 2 men and women f the ¢ ution guarantees: equal rights for15 qo the power to grant redress where it deems it appropriate or to refer the matter 25 grou! Bride price also promotes ine: quality in marriage in a ee ty in marriage in as met to paying bride price. This al: 5-21 and 31 which provides for me Merriage, during marriage and its dissol Provides for w far as the eustoms only so runs conty ar provisions of nto have equal rights in ution; as w Article 33 which en to have full and eq Lastly, 1 will briefly consider ground 12 of his ground, the contended that the leamed Justices of tt 1¢ Constitutional Court erred en they held that the unfavorable aspects of the custom of bride price may be rough redress under any other law and not through declarations, Art tutional Court to eclaration where it requires the Con: finds that an allegation made in a petition brought bi has been proven. This is because the Constitutional Court has a legal and mandatory duty to do so. ion granted to the Constitutional Court was reserved only 1 The dis respec! to-the High Court-to investigate and-determine the-appropriate redress. Conclusion In conclusion, I find, for all the reasons given in this judgment, that the majority Justices of the Constitutional Court erred in law and fact when they dismissedConstitution e different rice means the same thing for al Constitutional Court erres udisial notice of the custom of the Constitutional Court erred when they and refund of bride price promotes inequality is. @ pay is one of the causes of domestic violence in customary es ofthe Constitutional Court erred it the majority Ju aijon on the undesicable effects of bride price whe ed to issue on the basis that these could be remedied by other laws and means, other than declaratio Lwould accordingly allow this appeal and make the following declarations: The voluntary exchange of gifts at marriage or during marriage between s wife to be and/er her parents and relatives and the groom to be and hi yorsais flot unconstitutional.the custom, | P ' acondition precedent for the validity of 2 oo stent with Articles 2, 2101) &2, NY >: (4), and 33(4) of the Constitution. F : !) That 4 the custom and practice of demand for refund of bride price as a condition precedent to a valid dissolution of customary marriage is 311 )(0); 318) 322), 33(1), and inconsistent with Articles 2, 21(1) & 2, 33(4) of the Constitution. s x ice as acondition precedent to @ valid. e) ‘That the payment of bride pi dent to the refund as & condition precet iage which has been demanded for by @ swomait’s parents and/or relatives undermines the dignity & status of : ———~wemnen and is therefore inconsistent with Article sary, Tact and G), and 210) & 2) of the Constitution. a Constitutional Court not make any order concerned matters of public interest. Tis would so order. customary marriage, and of its dissolution of a customary marn The appellants wisely prayed tothe This petition and appeal that each party should be: as to costs. only befitting at their respective costs. I mW“Auigereess 2018 D this ...06... day of DATE eee HON. DR. TETHER KISAAKYE, JSC JUSTICE OF THE SUPREME COURT.