WHICH country (read community) can truly claim to be following its â€œtraditional cultureâ€ in a pure form? None have remained in a pristine state; all have been subject to change and distortion by external influence, both as a result of colonialism and through participation in modern inter-state r
WHICH country (read community) can truly claim to be following its â€œtraditional cultureâ€ in a pure form? None have remained in a pristine state; all have been subject to change and distortion by external influence, both as a result of colonialism and through participation in modern inter-state relations. (Shashi Tharoor, 2001)
Ugandaâ€™s criminal law of incest
Under Section 49(1) of Ugandaâ€™s Penal Code Act, the law prohibits and in fact punishes sexual intercourse between persons who are related in ways specified by the Act.
It provides that it is a crime to have intercourse with oneâ€™s
mother, father, motherâ€™s daughter, fatherâ€™s son, daughter, son, fatherâ€™s mother, motherâ€™s father, motherâ€™s mother, fatherâ€™s father, sonâ€™s daughter, sonâ€™s son, daughterâ€™s daughter, daughterâ€™s son, sister, brother, wifeâ€™s mother, husbandâ€™s father, wifeâ€™s daughter, husbandâ€™s son, fatherâ€™s sister and fatherâ€™s brother.
It is also a crime to have intercourse with oneâ€™s motherâ€™s sister, motherâ€™s brother, brotherâ€™s daughter, brotherâ€™s son, sisterâ€™s daughter, sisterâ€™s son, fatherâ€™s brotherâ€™s daughter, fatherâ€™s brotherâ€™s son, motherâ€™s sisterâ€™s daughter, motherâ€™s sisterâ€™s son, sonâ€™s wife, daughterâ€™s son, fatherâ€™s wife and motherâ€™s husband. It is immaterial that the sexual intercourse took place with the consent of both parties.
The offence basically focuses on close ties of consanguinity but also covers other family ties which are not blood relationships.
Prior to the 1990 amendment to the Penal Code, Ugandaâ€™s criminal law had adopted the western concept of incest and prohibited only sexual relationship within the â€œnuclearâ€ family â€“ brother-sister, father-daughter, mother-son, plus grandparent-grandchild. It is the 1990 amendment which widened the prohibited relationships to include other associations and one may ask the question: was this necessary?
It is noted that incest is also handled under the laws of marriage. For example, under the Customary Marriage (Registration) Act, Chapter 248, Laws of Uganda, marriage between persons within specified relationships is prohibited.
It is to be noted that the relationships on which criminal prosecution under the penal code can be based in case of sexual intercourse are identical to the relationships which the Marriage Act refers to as â€œProhibited Degrees of Kinshipâ€ for purposes of marriage.
In both the penal code and the marriage legislation, belonging to the same clan is not mentioned as a prohibited degree of kinship.
A look at the amended law reveals that whereas some of the newly prohibited relationships conform to what some communities in Uganda in fact prohibit, they may be contrary to the sanctioned behaviour of other communities.
For example, some communities did not traditionally frown upon a man (an heir) taking over his fatherâ€™s wife, as long as the woman was not the biological mother of that man. And in some communities it was not taboo for a man to have sexual intercourse with his daughter in-law.
A look at the list of prohibited relationships mentioned above indicates that such relationships were criminalized by the 1990 amendment to the Penal Code. Perhaps in a culturally heterogeneous society as is the Uganda society, it is not surprising that what may be acceptable to one community is taboo to another. Nevertheless since culture is not a defence to a criminal charge, it is what is provided in the Penal Law that prevails over culture.
In the same breath, that which is not penalized by criminal law is not an offence even when prohibited by culture. It is for this reason that where two adults who belong to the same clan, voluntarily choose to enter into a marriage, they commit no crime, although what they intend to do may be frowned upon by culture.
Purpose of the law of incest
As legislators come up with laws, the overriding question should be: what mischief would the new piece of law resolve?
The law of incest is in the main a reproduction of socio-cultural norms and values about sex and sexuality. It regulates sexual behaviour and supports societyâ€™s parameters of â€œnormalâ€ sexual behaviour. In certain aspects, the law on incest also conforms to Biblical Principles. For example, Leviticus 18:6 provides that â€œNo one is to approach any close relative to have sexual relations.â€
In as far as blood relationships are concerned one can confidently contend that the historical purpose of the law was to prevent genetic risks which may attach to conception. In regard to relationships which have no blood ties e.g. step children and step parents, one can justify the rule on the basis that we need to protect the young and the vulnerable from being sexually exploited and abused within the highly regarded but extraordinarily private institution - the family.
A relevant question is: what evil arises when two consenting adults who have no known blood relationship decide to marry and the only reason being thrown at them is that they belong to the same clan?
One may quickly shoot back thus: â€œthe evil lies in the fact that they are breaking the rules of society, such marriage is an abomination against culture.â€
The above answer may not be satisfactory to those of us who opine that: There is nothing sacrosanct about culture anyway. Culture is constantly evolving in any living society, responding to both internal and external stimuli, and there is much in every culture that societies quite naturally outgrow and reject. We are thus not obliged to defend, in the name of culture, practices that treat an adult as incapable of making meaningful decisions, and instead empower the parents of an adult man or woman to determine their off-springâ€™s partner in marriage.
One setback with culture is that it subsumes all members of a society under a framework they may prefer to disavow/renounce. If dissenters within each culture are free to opt out and assert their individual rights â€“ for example a personâ€™s right not to marry under customary law â€“ then it is a different story. Otherwise I opine that an adult of sound mind can legitimately opt out of culture.
The writer is Associate Professor of Law at Makerere University
Same-clan marriages are perfectly alright