By Percy Night Tuhaise

THE recent Constitutional Court ruling which decriminalised adultery was long overdue. The criminal adultery laws were protecting the married male, in the typical patriarchal fashion. From the wording of Section 154 of the Penal Code Act, men were given more sexual freedom than women.

A married man could go “on rampage” with any unmarried woman for as long as he was not “tampering” with another man’s wife.

However, the married wife was not supposed to go on any “rampage” at all, not even with an unmarried man! What hypocrisy! As if that was not enough, it was only the “aggrieved” married male (husband of the adulterous wife) who qualified for the compensation of sh600 (or sh1,200 on subsequent conviction). The married wife of an adulterous husband was not entitled to any compensation, that is, such wife would not be “aggrieved”!
This is a reflection of the double standards of patriarchal society.

It presupposes that men have proprietory rights over women’s bodies. Gender scholars have argued that this was engineered to ensure or guarantee that all children in the marriage belong to the man for inheritance matters, or to ensure that there is certainty in issues of paternity so that property rightfully flows along the paternal line from man to his off-springs.

This was in addition to ensuring that a married woman only has sexual relations with her husband though the husband could “wander” among unmarried women. This patriarchal trait of double standards permeates many other areas of law like property laws, marriage laws, divorce laws, and succession laws.

Many of the discriminatory provisions in the said areas of the law have fortunately been declared unconstitutional by the same court. They were glaringly in conflict with the Constitution which guarantees equality of spouses during marriage and at its dissolution, and outlaws discrimination on grounds of gender, among others.

They also conflicted with international conventions ratified by Uganda, like the Convention on the Elimination of All Forms of Discrimination Against Women.
Unfortunately, our patriarchal society, men and women alike, have been socialised into not questioning men’s proprietory rights over women’s bodies.

That is why the average “Nakkus” will continue to publicly and proudly acknowledge being “wives” of monogamously-married men without considering the legal and criminal implications of their statements; or why the institution of polygamy will continue to be encouraged even by the very people who should shun it — the wives; or why some wives who are not beaten by their spouses will wonder whether they are loved; or why wives will ask their husbands “Wangula meka” (how much bride price did you pay for me) as an apparent challenge that they do not own them if they did not pay bride price to their parents; or why female genital mutilation continues to be endured by women; or why the enactment of the Domestic Relations Bill into law continues to be “a thorn in the flesh” for some sections of society including some legislators. The list is endless.

The second aspect of the ruling is the resultant creation of a lacuna (vacuum, gap) in as far as criminal adultery is concerned. Adultery ceased to be a crime when the ruling was made. While some sections of society have jubilated that they are now free to indulge in extra marital affairs, others are mourning that it is the end of morality, and the beginning of the law of the jungle on the issue. Both groups could have misinterpreted the position.

Though the effect of the ruling was decriminalisation of adultery, it does not in the least legalise it. Decriminalisation merely means that no one will be prosecuted in a criminal court and be punished on conviction. No law (or court decision for that matter) states that people must commit adultery, for that is what legalising adultery would mean.

Adultery still remains a matrimonial wrong that can be relied on as a ground for judicial separation or divorce, or even as a ground for claiming damages in civil courts if a party proves that he/she was injured by the adulterous conduct of a spouse. The definition of civil adultery is not discriminatory (gender neutral).

Recent court decisions have defined it to mean consensual sexual intercourse during subsistence of marriage between one spouse and a person of the opposite sex, not being a spouse. In simple language it means voluntary sexual intercourse between a married person and a person who is not a wife or husband of that married person.

Those who argue that adultery must remain criminal because it is immoral may need to know that not all immoral wrongs are criminal. The Ten Commandments are a good example.

A violation of some of them, like not going to church on the Sabbath Day/Sunday; not honouring your parents; adoring smaller gods other than the Almighty; coveting other peoples property, etc, may be morally wrong but not necessarily criminal.

The Bishop or Pastor at you local church may declare you a sinner and probably condemn you to Hell for breaching the said commandments, or a practicing catholic may confess them as sins before the Priest, but no Police Officer will come knocking on your door for investigation and eventual prosecution.

Even some aspects of the Commandment – Thou shall not commit adultery – have not been criminalised in Uganda though they remain “sins” or moral wrongs. This is the aspect where two consenting adults who are not married to anyone or to each other indulge in voluntary sexual intercourse.

Such type of fornication remains a cardinal sin in the Bible but it is not a crime under our Penal system. It only becomes a crime where one or both of the parties are not adults (defilement) or where the sexual union is forceful (rape) or is “unnatural” (bestiality, homosexuality) or, until the court ruling, where sexual rights of some third party have been violated (adultery).
Various justifications have been advanced for criminalising adultery.

These include the upholding of moral values, deterrence, punishment of offenders, and minimising the possibility of people taking the law in their own hands. All these are valid religious and social justifications geared towards the protection of the sanctity of marriage as an age old institution. The paradox, however, is that the very same situation of criminalising adultery could have the effect of destroying a marriage.

A spouse convicted of adultery at the instigation of his/her spouse (and for that matter, serving a jail sentence or paying compensation or a fine) may find it more difficult to reconcile than one who has merely been forgiven by the aggrieved spouse. A bruised ego is hard to nurse (especially the male ego?). In that light, decriminalising adultery and leaving spouses to mutually sort out their differences would be healthy for the sustenance of the marriage institution, which thrives on compromises, tolerance, and forgiveness.

Even the so called civil adultery need not be an automatic gateway to securing a divorce (ending a marriage) unless the marriage has reached a point of not being saved.

A common example is where the spouses have separated and each is cohabiting, and has children, with other parties. In some countries the principle is referred to as irretrievable breakdown of marriage and is a ground for divorce.

The writer is the Deputy Director of the Law Development Centre