No DNA test on children without court order

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After a prolonged wait, Sarah Opendi, walked the talk and re-tabled a private member’s Bill titled ‘The Marriage Bill 2024’.

Known for introducing controversial laws, with the latest being the Alcoholic Drinks Control Bill, the Uganda Women Parliamentary Association (UWOPA) chairperson seeks to cure defects within the existing law.

Sarah Opendi. (File photo)

At the core, the draft law seeks to provide for recognised marriages in Uganda, registration of marriage, marital rights and obligations, conversion from one form of marriage to another form of marriage, property rights, separation and dissolution of marriage, among others.

This unfolded during a plenary session on Thursday last week, which was chaired by Speaker Anita Annet Among. However, owing to Opendi’s health hiccups, the Bill was tabled by Dorcus Acen (Alebtong District Woman MP, NRM).

Speaker Anita Annet Among. (File photo)

By all appearances, the Bill had a rough start when it was revealed that Opendi's Bill was denied a certificate of financial implication (CIF). The situation was salvaged by Speaker Among, who invoked provisions of the Public Finance Management Act (PFMA).

“In the absence of the CIF, section 76(4) of the Public Finance Management Act provides that a certificate of financial implication shall be deemed to have been issued after 60 days of the date of request of the certificate,” Among explained.

No DNA test without court order

Most likely to spark debate is Clause 44, which prohibits subjecting children presumed to have been born out of wedlock during the marriage to a Deoxyribonucleic Acid (DNA) test without a court order.

“There shall be a rebuttable presumption that a child born during the subsistence of a marriage is the biological child of the parties to the marriage. A person shall not subject a child born during the subsistence of a marriage to DNA testing without an order of court,” the Bill states in part.

A DNA test is a scientific method used to identify genetic relationships or specific genetic information by analysing a person's deoxyribonucleic acid (DNA).

They are commonly used to determine biological relationships, such as confirming whether a man is the biological father of a child or establishing family connections.

When a child doesn’t resemble the father or rumors arise, wives often bear the brunt of the blame. Pastor Martin Ssempa of Makerere Community Church argues that, in some cases, it's beyond natural factors.

“I think when something is done arbitrarily with due process and the results are not what is expected, there is a lack of structure in dealing with results. I think it is okay,” Ssempa said in reaction to Opendi’s proposal.

“We have had some cases in the recent past where some people have discovered that because of this and that, children did not have their DNA. It is assumed that it is because of promiscuity by the women. But there are also cases where the child was switched at birth or hospital.”

Breach of marriage

The Bill proposes that couples seeking to divorce could only do so after a year in marriage.

However, under Section 90 of the Bill, a person who breaches a promise to marry is on conviction, Iiable to pay damages.  An injured party may petition court for the return of a gift in contemplation of marriage owing to the other party’s failure to fulfill that promise.

“Damages awarded in an action for breach of a promise to marry shall not be in excess of loss actually suffered as a result of any expenditure incurred based on the promise,” Clause 90(3) stipulates.

Cohabitation, marriage gifts

Clause 87 prohibits demand for return of marriage gifts. A person who demands the return of a marriage gift is liable, upon conviction to a fine not exceeding sh10m or imprisonment not exceeding three years or both.

The Bill also seeks to ban cohabitation (holding out), which “means living together as husband and wife, acquiring or owing property jointly, bearing children together, and taking on the man's surname by the woman”.

Section 89 states: “A person who holds out as a husband or wife under this Act, commits an offence and is liable on conviction to a fine not exceeding sh10m or imprisonment not exceeding three years or both.”

Opendi has previously voiced concern over the rise in cohabitation, noting that it offers no guarantees.

“Close to 65% of the population are living together. For them they think they are husband and wife but when legally they are not registered. So, this is something that has remained but we are also trying to find a solution and borrow a leaf from other countries within Africa that have moved a step. For example, in Malawi, you are not allowed to cohabit beyond six months. Once you’re into six months, then you are recognised as husband and wife. In Tanzania it is equally the same, they also have a time limit,” she argued last year.

False marriage claims

If the Bill goes through, it will also be an offence to falsely claim that they are married to others. “A person who falsely claims or asserts that he or she is married to a particular person commits an offence known as jactitation of marriage and is liable on conviction to a fine not exceeding sh10m or imprisonment not exceeding three years or both,” states section 88.

Polygamy

Unlike under the current law where only Islamic and customary marriages can be polygamous, the Bill seeks to make civil marriages also potentially polygamous.

If the Bill passes in its current form, monogamous marriage partners, including those wedded in church, will also have chance to convert their marriages to ‘potentially polygamous’. This will be possible “if the husband of only one wife, by a declaration made by the husband and the wife, that they each, of their own free will, agree to the conversion”.

Couples in polygamous marriages, such as Islamic and customary, will also have the leeway to convert to monogamous marriage.

“A declaration under subsection (I) shall be made in the presence of a magistrate, or a registrar of marriage and shall be recorded in writing, signed by the husband and the wife and witnessed by the person before whom it is made, at the time of its making,” states section 39 (2).

Background

According to Chapter Four, a version of the Bill was first presented to Parliament in the 1970s, aiming to improve women's rights in marriage and consolidate the various acts regulating customary, Hindu, civil, Christian, and Islamic marriages.

After failing to pass, the renamed Domestic Relations Bill was tabled again in 2003; however, like its predecessor, it encountered significant opposition, particularly from Muslim groups opposing the ban on polygamy.

Female MPs sought to discuss the Bill in 2019, but the Government asked for more time to carry out further consultations before Parliament could consider the Bill then called the Marriage and Divorce Bill 2019.

What other leaders say 

Jennifer Aguti Ajiji, executive director National Association of Women in Uganda (NAWOU) said that the Bill is welcome as it is intended to protect the interests of women. “What UWOPA does is in the interest of women and the women organisations support it,” Ajiji said.

Elizabeth Kemigisha, advocacy and policy manager at the Uganda Association of Women Lawyers-FIDA (U) hopes that matrimonial property will be looked at with a gender lens.

“The issue of breach of promise to marry should not be legislated for in modern society, because there are challenges of forced marriages, teenage pregnancies,” Kemigisha explained.

Kemigisha said the Bill has taken many years to come on the floor of Parliament for debate. She noted that the family is the basic unit of society and needs state protection. She hoped that the Bill will reflect the realities of Uganda’s societies. 

“We hope the Bill will take into consideration women who are marginalised in society,” Kemigisha added.