Women Take Swipe At Divorce Act
Apr 14, 2004
THE Uganda Association of Women Lawyers petitioned the Constitutional Court on the grounds that certain aspects of the Divorce Act were inconsistent with the Constitution. They prayed that those sections be declared null and void. <b>Chibita wa Duallo</b> gives excerpts from the judgment by Justice
THE petitioners are challenging certain sections of the Divorce Act as being inconsistent and therefore in contravention of Articles 21(1) and (2), 31(1) and (6) of the Constitution.
The Divorce Act was enacted in Uganda in 1904 having its origins in the Matrimonial Causes Act of 1857 of England.
The Act provides that a party to a marriage could obtain a decree of divorce on proving that the spouse had committed a matrimonial offence. The only offence that entitled a husband to obtain the decree was adultery.
For a wife it was not enough to prove adultery against the husband.
Despite the fact that the English have since reformed their Act, the 150-year-old English law is still intact and in force in Uganda.
As if this is not bad enough, section 3 of the
Divorce Act requires that the courts of this country exercise their jurisdiction under the Act “in accordance with the law applied in matrimonial proceedings in the High Court of Justice in England.â€
It is interesting to note that the Constitution of Uganda enjoins the courts to exercise judicial power “in the name of the people and in conformity with the law and with the values, norms and aspirations of the people.†(Of Uganda of course!)
The word “discriminate†is defined in article 21(3). I have no doubt after studying the history of the Divorce Act that the impugned provisions of our Divorce Act are a result of the Englishman’s pre-20th Century perceptions that a man was a superior being to a woman.
It is glaringly impossible to reconcile the impugned provisions of the Act with our modern concepts of equality and non-discrimination between the sexes enshrined in our 1995 Constitution.
I have no doubt that the impugned sections are a derogation from articles 21, 31 and 33 of the Constitution.
The sole defence of the respondent is that a law, which was saved by article 273, cannot be nullified as being in contravention or inconsistent with the constitution.
The case of Pyarali Esmail vs Adrian Sibo was cited as authority for that proposition.
It must be noted that this court was dealing with a reference from the High Court under article 137(5).
Article 273 enables all courts to construe legislation, which existed at the coming into force of the Constitution with such “modifications, adaptations, qualification and exceptions as may be necessary to bring into conformity with the Constitution.†This Court, sitting as a Court of Appeal can avail itself of the provisions of article 273 where appropriate.
However, article 273 does not oust the jurisdiction of this Court, the Constitutional Court, when exercising its jurisdiction under article 137(3). Under that provision, this court is only required to declare whether or not an Act, act or omission is inconsistent with or in contravention of any provision of the Constitution and to grant a redress where appropriate. The defence is therefore not sustainable and should be rejected.
The next issue is whether the petitioners are entitled to the reliefs prayed for. The short answer is YES. This means that all the grounds of divorce mentioned in section 4(1) and (2) are available to both parties to the marriage and the provisions of the Act relating to naming of the co-respondent, compensation, damages and alimony apply to both women and men who are parties to the marriage.
No issue was framed as to whether contravention of an International Human rights Convention amounts to a contravention of the Constitution. I make no consideration holding on the matter.
I would allow this petition and make no order to costs as was requested by both parties.
Ends
The Divorce Act was enacted in Uganda in 1904 having its origins in the Matrimonial Causes Act of 1857 of England.
The Act provides that a party to a marriage could obtain a decree of divorce on proving that the spouse had committed a matrimonial offence. The only offence that entitled a husband to obtain the decree was adultery.
For a wife it was not enough to prove adultery against the husband.
Despite the fact that the English have since reformed their Act, the 150-year-old English law is still intact and in force in Uganda.
As if this is not bad enough, section 3 of the
Divorce Act requires that the courts of this country exercise their jurisdiction under the Act “in accordance with the law applied in matrimonial proceedings in the High Court of Justice in England.â€
It is interesting to note that the Constitution of Uganda enjoins the courts to exercise judicial power “in the name of the people and in conformity with the law and with the values, norms and aspirations of the people.†(Of Uganda of course!)
The word “discriminate†is defined in article 21(3). I have no doubt after studying the history of the Divorce Act that the impugned provisions of our Divorce Act are a result of the Englishman’s pre-20th Century perceptions that a man was a superior being to a woman.
It is glaringly impossible to reconcile the impugned provisions of the Act with our modern concepts of equality and non-discrimination between the sexes enshrined in our 1995 Constitution.
I have no doubt that the impugned sections are a derogation from articles 21, 31 and 33 of the Constitution.
The sole defence of the respondent is that a law, which was saved by article 273, cannot be nullified as being in contravention or inconsistent with the constitution.
The case of Pyarali Esmail vs Adrian Sibo was cited as authority for that proposition.
It must be noted that this court was dealing with a reference from the High Court under article 137(5).
Article 273 enables all courts to construe legislation, which existed at the coming into force of the Constitution with such “modifications, adaptations, qualification and exceptions as may be necessary to bring into conformity with the Constitution.†This Court, sitting as a Court of Appeal can avail itself of the provisions of article 273 where appropriate.
However, article 273 does not oust the jurisdiction of this Court, the Constitutional Court, when exercising its jurisdiction under article 137(3). Under that provision, this court is only required to declare whether or not an Act, act or omission is inconsistent with or in contravention of any provision of the Constitution and to grant a redress where appropriate. The defence is therefore not sustainable and should be rejected.
The next issue is whether the petitioners are entitled to the reliefs prayed for. The short answer is YES. This means that all the grounds of divorce mentioned in section 4(1) and (2) are available to both parties to the marriage and the provisions of the Act relating to naming of the co-respondent, compensation, damages and alimony apply to both women and men who are parties to the marriage.
No issue was framed as to whether contravention of an International Human rights Convention amounts to a contravention of the Constitution. I make no consideration holding on the matter.
I would allow this petition and make no order to costs as was requested by both parties.
Ends