The DRB will cure marriage problems
May 04, 2006
The law is often a solution to persistent problems of discrimination faced by women and other marginalised groups. In some instances, however, the law can also be discriminatory and thus create problems for the very people that it is meant to protect.
The law is often a solution to persistent problems of discrimination faced by women and other marginalised groups. In some instances, however, the law can also be discriminatory and thus create problems for the very people that it is meant to protect.
The offence of adultery is penalised by a fine of sh600, which makes it meaningless in a way because a person can commit adultery 100 times and pay, although there is the option of a year in jail.
Article 154 of the Penal Code Act discriminates against women. It states that a married woman commits adultery when she sleeps with any man who is not her husband. But a man commits adultery only when he sleeps with a married woman. This anomally will be cured by the Domestic Relations Bill (DRB) when it is passed.
Article 62(1) of the DRB states that, “Where a party to a marriage has sex with a person other than his or her spouse, both parties to that sexual act commit the offence of adultery and each is, on conviction, liable to a fine not exceeding forty currency points (sh800,000) or imprisonment not exceeding two years or both.
In Clause 2, the DRB states that a party convicted of adultery is liable, in addition to any criminal penalty, to pay compensation of an amount determined by court to his or her own spouse (if any) and to the spouse (if any) of the person with whom they committed the offence.
Article 62 shows that the DRB is gender neutral. When enacted into law both parties who commit the offence of adultery shall, on conviction, pay and Clause 2 states that the offenders are liable to criminal penalty.
In earlier times the man could demand for compensation from the man who has slept with his wife but a woman could not demand for compensation from the woman who has slept with her husband.
The problems of the Penal Code Act are to a certain extent cured by the DRB which seeks to make laws of marriage and separation equal and non-discriminatory. Whether we like it or not, the DRB has to be enacted into law.
Some of the laws that were made before the 1995 Constitution don’t take into account the principles in the Constitution. Each time we have to amend them so that they conform. This man (Edmond Rugunda, whose wife was allegedly caught with Rwanda envoy, Ngarambe, at Windsor Hotel committing adultery) would not have been going around taking pictures if the law on divorce did not ask for evidence. Evidence on adultery is difficult to get. You have to get receipts (of the hotel), keys, spies, photographs, etc.
But the DRB provides for divorce if the marriage is irretrievable. In the past for a woman to secure divorce she had to combine evidence of adultery with proof of cruelty of the man and/or desertion. For a man it was enough for him to prove that the woman committed adultery. But in our (LAW-Uganda) 2003 petition, the Constitutional Court ruled that grounds for divorce should be equal. In the past a man would say, “you have committed adultery, go out of my house.†But for a woman, if the man committed adultery she had to look for another reason (cruelty and desertion) as if for men adultery was a given.
LAW-Uganda, an organisation composed of women lawyers, will be engaged in continuous strategic legislation to help cure these inadequacies.
Other countries like the United States have moved away from criminalising adultery. When we come to consider the DRB this is one of the grounds we are ready to concede on, so that adultery can be a civil offence. It should be up to the parties to a marriage to decide whether or not to pursue it further. It can be a ground for divorce or they can decide to ignore it and remain married. Criminalising adultery does not help.
Ends
The offence of adultery is penalised by a fine of sh600, which makes it meaningless in a way because a person can commit adultery 100 times and pay, although there is the option of a year in jail.
Article 154 of the Penal Code Act discriminates against women. It states that a married woman commits adultery when she sleeps with any man who is not her husband. But a man commits adultery only when he sleeps with a married woman. This anomally will be cured by the Domestic Relations Bill (DRB) when it is passed.
Article 62(1) of the DRB states that, “Where a party to a marriage has sex with a person other than his or her spouse, both parties to that sexual act commit the offence of adultery and each is, on conviction, liable to a fine not exceeding forty currency points (sh800,000) or imprisonment not exceeding two years or both.
In Clause 2, the DRB states that a party convicted of adultery is liable, in addition to any criminal penalty, to pay compensation of an amount determined by court to his or her own spouse (if any) and to the spouse (if any) of the person with whom they committed the offence.
Article 62 shows that the DRB is gender neutral. When enacted into law both parties who commit the offence of adultery shall, on conviction, pay and Clause 2 states that the offenders are liable to criminal penalty.
In earlier times the man could demand for compensation from the man who has slept with his wife but a woman could not demand for compensation from the woman who has slept with her husband.
The problems of the Penal Code Act are to a certain extent cured by the DRB which seeks to make laws of marriage and separation equal and non-discriminatory. Whether we like it or not, the DRB has to be enacted into law.
Some of the laws that were made before the 1995 Constitution don’t take into account the principles in the Constitution. Each time we have to amend them so that they conform. This man (Edmond Rugunda, whose wife was allegedly caught with Rwanda envoy, Ngarambe, at Windsor Hotel committing adultery) would not have been going around taking pictures if the law on divorce did not ask for evidence. Evidence on adultery is difficult to get. You have to get receipts (of the hotel), keys, spies, photographs, etc.
But the DRB provides for divorce if the marriage is irretrievable. In the past for a woman to secure divorce she had to combine evidence of adultery with proof of cruelty of the man and/or desertion. For a man it was enough for him to prove that the woman committed adultery. But in our (LAW-Uganda) 2003 petition, the Constitutional Court ruled that grounds for divorce should be equal. In the past a man would say, “you have committed adultery, go out of my house.†But for a woman, if the man committed adultery she had to look for another reason (cruelty and desertion) as if for men adultery was a given.
LAW-Uganda, an organisation composed of women lawyers, will be engaged in continuous strategic legislation to help cure these inadequacies.
Other countries like the United States have moved away from criminalising adultery. When we come to consider the DRB this is one of the grounds we are ready to concede on, so that adultery can be a civil offence. It should be up to the parties to a marriage to decide whether or not to pursue it further. It can be a ground for divorce or they can decide to ignore it and remain married. Criminalising adultery does not help.
Ends