By Anne Mugisa
and Conan Businge

AN increasing number of people are suing their spouses using adultery as a ground for divorce. Currently, there are about 100 divorce cases filed by both men and women at Nakawa and Mengo courts in Kampala alone, according to a Saturday Vision survey. Though national figures are not available, a review of records in those courts suggests the numbers have been rising.

The Magistrate’s Court at Nakawa, for instance, registered an increase in pending cases from 31 in 2005 to 42 in 2006 and 52 in 2007. It dipped to 45 in 2008 then rose again to 64 by April 2009. The reasons for the increase are not entirely clear. One explanation may be that changes in the penal code have made it easier for women to file for divorce.

The criminal adultery law was scrapped on April 5, 2007 in a land mark ruling by the Constitutional Court. The Court ruled that section 154 of the Penal Code Act was unconstitutional because it treated men and women differently.

The old law gave the married man leeway to sleep around as long as the women he was involved with were not another man’s wife. A married woman, on the other hand, could not have sex with any man other than her husband.

In case of divorce, a woman had to prove multiple grounds, such as cruelty and desertion in addition to adultery, while the man only had to prove adultery. Now men and women alike only need to prove a single ground.

Andrew Kasirye, the former President for Uganda Law Society, said repealing the law on criminal adultery did not directly cause an increase in divorce. It only made it easier for women: “The repealing of the criminal adultery law just simplified it for women to file for divorce. That is the only way; the repealing of the law has raised the number of court cases on divorce.”

In addition to the legal changes, Uganda may be following a trend in many other countries, where divorce is more tolerated and where women are achieving increased economic independence. On the other hand, some people blame legal changes that have taken away men’s rights to sue other men who have relations with their wives.

The scrapped law allowed an aggrieved husband to get compensation from the offender. A cheated wife, on the other hand, was not entitled to compensation even if she could prove adultery.

According to High Court Registrar Paul Gadenya, all the criminal adultery cases that were in court at the time of the ruling were automatically dropped. “If a law is declared unconstitutional, then the cases which were brought under that law lapse,” he said.

Either the Director of Public Prosecutions withdrew the cases or the courts closed them. He said, however, that convictions made when the law was on still stand.

The Deputy Attorney General, Fred Ruhindi, said the government would soon replace the scrapped law with others that treat both spouses equally. The ‘Marriage and Divorce law’ (for non-Muslims) and the Administration of Muslim Personal law (for Muslims) have been drafted. “The bills will soon be tabled to Parliament,” Deputy Attorney General Fred Ruhindi told Saturday Vision.

Gender state minister Rukia Isanga is not surprised that divorce cases are going up. “The new law has taken long to come into force. The rise in number was expected,” he added.

While scrapping the adultery law was met with opposition from sections of society, women groups welcomed the move.

Rita Achilo, the Uganda Women's Network Coordinator, said the repealing of the old law was “a real good riddance”. She, however, called for the speedy passing of a new law to protect marriages.