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Adultery should not be a criminal offence

By Vision Reporter

Added 4th December 2006 03:00 AM

PASTORS have again been in the news for wrong reasons. This time it is a pastor divorcing his wife for alleged adultery. Adultery happens when a married man or woman voluntarily has sexual intercourse with another person who is not his/her spouse.

PASTORS have again been in the news for wrong reasons. This time it is a pastor divorcing his wife for alleged adultery. Adultery happens when a married man or woman voluntarily has sexual intercourse with another person who is not his/her spouse.

By Dora Byamukama

PASTORS have again been in the news for wrong reasons. This time it is a pastor divorcing his wife for alleged adultery. Adultery happens when a married man or woman voluntarily has sexual intercourse with another person who is not his/her spouse.

Under the Penal Code Act (S.154), a man who has sexual intercourse with another man’s wife faces up to 12 months in prison or a fine of sh200. He also pays sh600 to the woman’s husband as compensation if it is the first time he has been convicted of the offence. On subsequent conviction the maximum compensation is sh1,200. For an adulterous woman, the penalty is a caution on first conviction and on subsequent conviction a prison term not exceeding 12 months.

The Penal Code Act defines both “husband” and “wife” in relation to monogamous marriages only. Although the law was intended to protect and preserve the marriage institution, this intention was defeated by the definition being limited to monogamous marriages, since there are polygamous marriages that equally need protection of the law.

For example, in the case of Alai v Uganda, a Muslim man had sexual intercourse with a Muslim woman married to another Muslim man. The issue before court was whether the offence of adultery also applied to polygamous marriages (Muslim marriages are potentially polygamous). Court held that it applied to all forms of marriage recognised by the people of Uganda, including customary marriages. This means that the relevant sections of the Penal Code Act need to be amended.

The law, which often is expected to deliver justice and to address persistent cases of discrimination against women and other marginalized groups, can in some instances, be discriminatory and thus provide a basis for injustice to thrive against the very people it’s meant to protect. A critical analysis of the provision on criminal adultery confirms this. This is because this law provides that,
  • A man commits adultery if he has sexual intercourse with a married woman. It does not cater for instances when a married man has sex with an unmarried woman.

  • A married woman commits adultery when she ‘cheats’ with any man (married or unmarried). This sets different standards for males and females in marriage.

  • As noted above, the penalty for an adulterous man is imprisonment for not more than 12 months or a fine of sh200; and sh600-sh1,200 compensation.


  • On the other hand, the penalty for an adulterous married woman is caution by court on first conviction and on a subsequent conviction it is imprisonment for not more than six months. The question is, why does the law provide for different punishments for male and female offenders? Why is compensation only available to males? Do the monetary fines serve any purpose – deterrent or compensatory – in view of gross changes in monetary value?

    Monetary fines prescribed under criminal adultery make a mockery of justice. For example, The New Vision on August 18, 2006 run a story titled, “Man fined sh200 for adultery”. The unfaithful woman in this case was reportedly cautioned. The story further noted that “the magistrate heard that the adulterer and adulteress had a child but went on to state that “the accused persons deserved leniency since they appeared remorseful and seem to have learnt their lesson.” One wonders what lesson they had learnt from the sh200 fine and caution. Did sh200 pinch the adulterer’s pocket in any way?

    The woman’s husband stated after the judgment that it would help him get rid of (his wife) and that the judgment would form part of his divorce case. Therefore, criminal adultery cases principally serve to shame the accused, who in most cases is a woman.
    On April 11, 2006 New Vision carried an opinion titled “Police should not arrest adulterers”. In line with this opinion, one wonders whether it is worthwhile for courts and the police to continue wasting valuable resources on such issues when they could be optimally used to curb other serious crimes that need urgent attention such as defilement, ritual murders, domestic violence, and grabbing of widows’ and orphans’ property. Indeed as Dr Sylvia Tamale stated, “Pursuing adultery in courts is a waste of scarce police and prosecutorial resources, and the height of hypocrisy and injustice”.

    Difficulty further arises in cases of potentially polygamous marriages, such as customary and Mohammedan (Muslim) marriages because a potentially polygamous man may commit adultery and justify his action by reasoning that he is “scouting’ for another wife.

    These Penal Code Act provisions, which provide for different rights and penalties for male and female married persons, are contrary to the Constitution which provides for equality of persons and prohibits discrimination on the grounds of sex. In particular, Article 21(3) says, “Men and women are entitled to equal rights in marriage, during marriage and at its dissolution.”
    The Constitution also provides that men and women shall enjoy equal dignity, and prohibits laws which are against the dignity, welfare or interest of women or which undermine their status (Art 33(6).

    The law on criminal adultery should therefore be declared void (of no legal force) because it is unconstitutional. Some countries have abandoned criminalization of adultery because it is not only difficult to police adults but it also serves no purpose when two adults have consented to sex.

    The aggrieved party in such cases has the choice of either living with the issue or using it as a basis for divorce. Some jurisdictions instead have a civil offence termed “alienation of affection”, which an aggrieved party can use in order to get compensation for loss of affection or being alienated so to say, during the time his or her spouse was committing adultery.

    The writer is the Director of Law & Advocacy For Women In Uganda

    Adultery should not be a criminal offence

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