Will the new adultery law be fair to both men and women?
Apr 15, 2007
VARIOUS opinions have been expressed about the Constitutional Court decision that declared the law on criminal adultery to be in contravention of the Constitution.
By Irene Mulyagonja
VARIOUS opinions have been expressed about the Constitutional Court decision that declared the law on criminal adultery to be in contravention of the Constitution.
Unfortunately, most of them appear to have been made without reading the judgement.
The uninformed opinions have resulted in confusion and may lead to violence and other unfortunate results among emotional members of the public.
Opinions have mostly focused on adultery as a crime proscribed by s.154 of the Penal Code Act and not the whole subject of infidelity, which hitherto had two limbs under the Laws of Uganda.
While s.154 of the Penal Code Act proscribed adultery as a criminal offence (i.e. prohibited a married woman from having sexual intercourse with any man other than her husband, or any man having sexual intercourse with a married woman), the Divorce Act dealt with the matrimonial offence of adultery (i.e. a civil wrong prohibiting any married person from having sexual intercourse with any person other then his/her spouse).
The former is the subject of the recent ruling of the court and is dead, while the latter is still alive and doing very well when it is invoked by the aggrieved spouse.
I was therefore particularly struck by the insistent allegations, including those by the clergy, that the Constitutional Court had “legalised†adultery! Linda Niwenyesiga (New Vision, April 9) insists that adultery must remain a crime in Uganda, while Martin Ekanya (New Vision April 8) is of the view that the death of criminal adultery will destroy marriages.
It is obvious from these and similar views that the protagonists of criminal adultery are not aware of the manner in which it operated in Uganda. It is therefore important that we set the record straight before the Government makes a decision whether or not to draft and enact a “stiffer adultery law.â€
In the days before the decision of the Constitutional Court in FIDA (U) vs. Attorney General (petition on Divorce Act which led to the still disputed position that both men and women should have the same and equal grounds to get a divorce), men had only adultery as a ground for divorce.
Men who wanted to divorce estranged wives had to first catch them in an adulterous liaison, preferably inflagrante delicto (actually having sex with another man).
The standard of proof for adultery in matrimonial proceedings was not on the balance of probabilities as is in other civil proceedings; it was taken to be slightly below beyond reasonable doubt, or sometimes beyond reasonable doubt, which is the standard required in criminal proceedings.
Prudent estranged wives made it impossible for their husbands to obtain divorce by not committing adultery, or not getting caught, if they did. This led to frustration for such husbands who wished to remarry and resulted in misuse of the criminal law of adultery to amazing proportions.
Sometime in 2000, it came to the attention of women’s rights activists that a good number of adultery prosecutions instituted in the criminal courts, related to couples that had been living in separation for varying periods of time. In a much publicised case that was heard at Buganda Road Magistrates Court in 2001, Mark (not real name of complainant) who had been separated from Maria (not real name of accused) for several months, wanted to obtain a divorce.
The reasons for Maria’s departure from their matrimonial home were excessive cruelty including forced sex a few days after child birth, and several infections with sexually transmitted diseases from the “sanctity†of her marital bed.
Mark had already taken up residence with a mistress. He wished to terminate the marriage so that he could marry his mistress.
Mark hired a boda boda cyclist to track the movements of Maria and before long, she was found in a compromising situation. Mark enlisted the help of police and the couple were arrested in a house that Maria had rented when she left the matrimonial home.
On arrest, Maria and her friend were physically examined to establish whether they had indeed committed adultery immediately before they were apprehended.
The man had his underwear examined, while Maria was ordered to remove her underwear and have a vaginal examination.
The examinations revealed that the man had semen on his underwear while Maria was in her (menses) (monthly period). No forensic tests were done to establish whether there was semen in Maria’s menstrual fluid.
The semen on the man’s underwear was examined and found to be that of a “human being.†Despite the inconsistencies in evidence, the couple were still prosecuted to fulfil Mark’s wishes.
In his ruling, the learned magistrate reasoned that though the woman was found to be in her menses, this could not be a defence to the charge of adultery because the first physical examination had revealed “nothing in her private parts,†but a subsequent examination revealed a lot of blood on her underwear.
The woman constable handling the case did not proceed with further examination or take exhibits because Maria had only one set of bloody underwear.
In spite of the inept manner in which forensic evidence had been handled, Maria and her co-accused were found guilty of committing adultery.
In his judgement, the magistrate wondered why the couple had taken so long to open the door when police knocked.
He was also of the opinion that Maria, a married woman, had no reason to rent a house without the knowledge or consent of her (estranged) husband.
Because there was no direct evidence, the magistrate relied on circumstantial evidence and used authorities on adultery in matrimonial offences “as persuasive authority†to convict the couple of criminal adultery.
The man was sentenced to three and a half months imprisonment together with a fine of sh600 to be paid to Mark, while Maria was cautioned to resist temptation and to return to her family and “share with them faithfully.â€
Because of the excessive cruelty during the marriage, Maria could not return to her husband.
However, Mark had obtained his evidence for the divorce proceedings that he so much desired. After a failed petition in 2001, in 2006 he used the evidence of the conviction for adultery and successfully divorced Maria.
By that time, he and his mistress had begotten a child. The wife now lives in disgrace, but the husband can hold his head up high.
Between 1997 and 2005, I dealt with five cases where estranged husbands (living in adultery themselves) invoked criminal adultery law in order to secure evidence for divorce.
Others did it as sheer vengeance against their wives. In all cases, prosecution had nothing to do with restoring the marital relationship but to put a final nail in the coffin bearing the dead marriage.
Clerics (mostly men) and the likes of Linda Niwenyesiga (gatekeepers) agitating for the re-criminalisation of the law on adultery, are perhaps unknowingly speaking the same language — patriarchy.
Contrary to what Niwenyesiga and others say, there is nothing Christian about the criminalisation of adultery. Jesus Christ did not support the stoning of the adulteress who was brought to him by the Pharisees (John 8:3). He reaffirmed that adultery is a sin, but challenged those that wanted to throw stones at the woman.
The criminalisation of adultery in favour of the “injured husband†is based on the patriarchal notion that the husband has proprietary rights over his wife. When one commits adultery with her, it amounts to stealing his property.
That person must compensate him or be imprisoned for his trespass on his property! The death of criminal adultery is thus a resounding blow to patriarchy within the laws of Uganda.
What is interesting to note is that patriarchy moves with lightening speed to re-entrench itself. Within the short space of two working days after court dealt a death blow to criminal adultery, it is reported that Cabinet has already convened to discuss the issue.
The Attorney General has been instructed to draft a bill to re-criminalise adultery within two weeks! Compare this to the 40 or more years that it took to get the proposed reform of family law drafted into the Domestic Relations Bill!
It is highly unlikely that the 8th Parliament with a population of over 70% male MPs (several of who have been prosecuted and hounded with court orders for failure to maintain children born out of extra marital relationships), will pass such a law.
This is the same Parliament that could not discuss the alleged bigamy/adultery of the Vice-President of the nation. It is also doubtful that the enactment of a criminal adultery law to apply to both men and women will result in any prosecutions of men for adultery.
As has been demonstrated in the serialisation of the alleged relationship between one Jamilah Nakku and the VP, women in Uganda have been socialised to accept adultery, whether in monogamous or polygamous marriages, as a normal occurrence; it is seen as one of the stages in the “growth†of a marriage!
So the writing about a “stiffer adultery law†is already on the wall; if it is ever enacted, it will still benefit men more than it will benefit women.
The writer is an advocate of the Courts of Judicature
VARIOUS opinions have been expressed about the Constitutional Court decision that declared the law on criminal adultery to be in contravention of the Constitution.
Unfortunately, most of them appear to have been made without reading the judgement.
The uninformed opinions have resulted in confusion and may lead to violence and other unfortunate results among emotional members of the public.
Opinions have mostly focused on adultery as a crime proscribed by s.154 of the Penal Code Act and not the whole subject of infidelity, which hitherto had two limbs under the Laws of Uganda.
While s.154 of the Penal Code Act proscribed adultery as a criminal offence (i.e. prohibited a married woman from having sexual intercourse with any man other than her husband, or any man having sexual intercourse with a married woman), the Divorce Act dealt with the matrimonial offence of adultery (i.e. a civil wrong prohibiting any married person from having sexual intercourse with any person other then his/her spouse).
The former is the subject of the recent ruling of the court and is dead, while the latter is still alive and doing very well when it is invoked by the aggrieved spouse.
I was therefore particularly struck by the insistent allegations, including those by the clergy, that the Constitutional Court had “legalised†adultery! Linda Niwenyesiga (New Vision, April 9) insists that adultery must remain a crime in Uganda, while Martin Ekanya (New Vision April 8) is of the view that the death of criminal adultery will destroy marriages.
It is obvious from these and similar views that the protagonists of criminal adultery are not aware of the manner in which it operated in Uganda. It is therefore important that we set the record straight before the Government makes a decision whether or not to draft and enact a “stiffer adultery law.â€
In the days before the decision of the Constitutional Court in FIDA (U) vs. Attorney General (petition on Divorce Act which led to the still disputed position that both men and women should have the same and equal grounds to get a divorce), men had only adultery as a ground for divorce.
Men who wanted to divorce estranged wives had to first catch them in an adulterous liaison, preferably inflagrante delicto (actually having sex with another man).
The standard of proof for adultery in matrimonial proceedings was not on the balance of probabilities as is in other civil proceedings; it was taken to be slightly below beyond reasonable doubt, or sometimes beyond reasonable doubt, which is the standard required in criminal proceedings.
Prudent estranged wives made it impossible for their husbands to obtain divorce by not committing adultery, or not getting caught, if they did. This led to frustration for such husbands who wished to remarry and resulted in misuse of the criminal law of adultery to amazing proportions.
Sometime in 2000, it came to the attention of women’s rights activists that a good number of adultery prosecutions instituted in the criminal courts, related to couples that had been living in separation for varying periods of time. In a much publicised case that was heard at Buganda Road Magistrates Court in 2001, Mark (not real name of complainant) who had been separated from Maria (not real name of accused) for several months, wanted to obtain a divorce.
The reasons for Maria’s departure from their matrimonial home were excessive cruelty including forced sex a few days after child birth, and several infections with sexually transmitted diseases from the “sanctity†of her marital bed.
Mark had already taken up residence with a mistress. He wished to terminate the marriage so that he could marry his mistress.
Mark hired a boda boda cyclist to track the movements of Maria and before long, she was found in a compromising situation. Mark enlisted the help of police and the couple were arrested in a house that Maria had rented when she left the matrimonial home.
On arrest, Maria and her friend were physically examined to establish whether they had indeed committed adultery immediately before they were apprehended.
The man had his underwear examined, while Maria was ordered to remove her underwear and have a vaginal examination.
The examinations revealed that the man had semen on his underwear while Maria was in her (menses) (monthly period). No forensic tests were done to establish whether there was semen in Maria’s menstrual fluid.
The semen on the man’s underwear was examined and found to be that of a “human being.†Despite the inconsistencies in evidence, the couple were still prosecuted to fulfil Mark’s wishes.
In his ruling, the learned magistrate reasoned that though the woman was found to be in her menses, this could not be a defence to the charge of adultery because the first physical examination had revealed “nothing in her private parts,†but a subsequent examination revealed a lot of blood on her underwear.
The woman constable handling the case did not proceed with further examination or take exhibits because Maria had only one set of bloody underwear.
In spite of the inept manner in which forensic evidence had been handled, Maria and her co-accused were found guilty of committing adultery.
In his judgement, the magistrate wondered why the couple had taken so long to open the door when police knocked.
He was also of the opinion that Maria, a married woman, had no reason to rent a house without the knowledge or consent of her (estranged) husband.
Because there was no direct evidence, the magistrate relied on circumstantial evidence and used authorities on adultery in matrimonial offences “as persuasive authority†to convict the couple of criminal adultery.
The man was sentenced to three and a half months imprisonment together with a fine of sh600 to be paid to Mark, while Maria was cautioned to resist temptation and to return to her family and “share with them faithfully.â€
Because of the excessive cruelty during the marriage, Maria could not return to her husband.
However, Mark had obtained his evidence for the divorce proceedings that he so much desired. After a failed petition in 2001, in 2006 he used the evidence of the conviction for adultery and successfully divorced Maria.
By that time, he and his mistress had begotten a child. The wife now lives in disgrace, but the husband can hold his head up high.
Between 1997 and 2005, I dealt with five cases where estranged husbands (living in adultery themselves) invoked criminal adultery law in order to secure evidence for divorce.
Others did it as sheer vengeance against their wives. In all cases, prosecution had nothing to do with restoring the marital relationship but to put a final nail in the coffin bearing the dead marriage.
Clerics (mostly men) and the likes of Linda Niwenyesiga (gatekeepers) agitating for the re-criminalisation of the law on adultery, are perhaps unknowingly speaking the same language — patriarchy.
Contrary to what Niwenyesiga and others say, there is nothing Christian about the criminalisation of adultery. Jesus Christ did not support the stoning of the adulteress who was brought to him by the Pharisees (John 8:3). He reaffirmed that adultery is a sin, but challenged those that wanted to throw stones at the woman.
The criminalisation of adultery in favour of the “injured husband†is based on the patriarchal notion that the husband has proprietary rights over his wife. When one commits adultery with her, it amounts to stealing his property.
That person must compensate him or be imprisoned for his trespass on his property! The death of criminal adultery is thus a resounding blow to patriarchy within the laws of Uganda.
What is interesting to note is that patriarchy moves with lightening speed to re-entrench itself. Within the short space of two working days after court dealt a death blow to criminal adultery, it is reported that Cabinet has already convened to discuss the issue.
The Attorney General has been instructed to draft a bill to re-criminalise adultery within two weeks! Compare this to the 40 or more years that it took to get the proposed reform of family law drafted into the Domestic Relations Bill!
It is highly unlikely that the 8th Parliament with a population of over 70% male MPs (several of who have been prosecuted and hounded with court orders for failure to maintain children born out of extra marital relationships), will pass such a law.
This is the same Parliament that could not discuss the alleged bigamy/adultery of the Vice-President of the nation. It is also doubtful that the enactment of a criminal adultery law to apply to both men and women will result in any prosecutions of men for adultery.
As has been demonstrated in the serialisation of the alleged relationship between one Jamilah Nakku and the VP, women in Uganda have been socialised to accept adultery, whether in monogamous or polygamous marriages, as a normal occurrence; it is seen as one of the stages in the “growth†of a marriage!
So the writing about a “stiffer adultery law†is already on the wall; if it is ever enacted, it will still benefit men more than it will benefit women.
The writer is an advocate of the Courts of Judicature