THE Law and Advocacy for Women in Uganda declared the legal provisions for the offence of criminal adultery null and void, and as well struck down some sections of the Succession Act. Lawyer, Dora Byamukama analyses the implications.
THE Law and Advocacy for Women in Uganda petitioned the Constitutional Court in respect of Section 154 of the Penal Code Act. This Section provides that:
â€œ(1) Any man who has sexual intercourse with any married woman not being his wife commits adultery and is liable to imprisonment for a term not exceeding 12 months or to a fine not exceeding sh200 and in addition the court shall order any such man on first conviction to pay the aggrieved party compensation of sh600 and on subsequent conviction compensation not exceeding sh1,200 as may be so ordered.
(2) Any married woman who has sexual intercourse with any man not being her husband commits adultery and is liable on the first conviction to a caution by court and on subsequent conviction to imprisonment for a term not exceeding six months.
The interpretation of Section 154 of Penal Code Act was to the effect that the law did not penalise a married man who has sexual intercourse with an unmarried woman. However, the same law penalised a married woman who had sexual intercourse with any man.
This law also provided for different penalties for persons who commit adultery. A man was on conviction liable to imprisonment for a term not exceeding 12 months or to a fine not exceeding sh200 whereas a married woman was liable on first conviction to a caution and on subsequent conviction to a term not exceeding six months.
Furthermore, a married man whose wife commits criminal adultery was considered as an aggrieved party and was therefore entitled to compensation of sh600 on first conviction and on subsequent conviction to compensation not exceeding sh1,200.
The law did not treat a married woman whose husband has committed adultery as an aggrieved party who would also be entitled to compensation.
The Constitutional Court on Thursday declared Section 154 of the Penal Code Act null and void. This means that this Section is of no legal consequence. It therefore means that adultery is no longer a criminal offence. It, however, does not mean that adultery is lawful. Adultery remains a matrimonial offence that can be used as a ground for divorce or judicial separation as provided for under the Divorce Act. The basis for this is that marriage is a contract between parties and commission of adultery is breach of that contract. In this instance, remedies for breach of the marriage contract are left to the parties to determine.
In addition, the offence of adultery, if taken to a higher level, where a married person purports to undergo another marriage while they are still in a subsisting monogamous marriage is an offence termed bigamy. This offence is committed when a person who having a husband or wife goes through a ceremony of marriage which is void by reason of its taking place during the life of a such husband or wife. Bigamy is punishable by imprisonment for five years under Section 153 of the Penal Code and Section 41 of the Marriage Act.
The Law and Advocacy for Women in Uganda also challenged some sections of the Succession Act. The issues raised were:
Whether Section 27 of the Succession Act which provides only for male intestacy is constitutional. This section presumes that women who die intestate (without a will) do not have any property to bequeath. This was premised on stereo-typing where women were treated as property and therefore â€œproperty could not own propertyâ€. It also presupposed that women did not have property.
Whether Section 27 of the Succession Act, which generally grants a widow 15% of the estate; while a widower enjoys 100% is constitutional. This section ignores womenâ€™s contribution to the estate. It provides for automatic division of property even when a widow is still living and has ability to manage the estate and continue contributing to it.
Whether Rule 8 (a) of the Second Schedule to Succession Act which provides that a widowâ€™ s right of occupancy in a residential holding terminates upon re-marriage while that of a man terminates upon death is constitutional.
Whether Section 43 of the Succession Act which provides that guardians are appointed by the father undermines a motherâ€™s parental rights. The question is, why should a guardian be appointed when the mother of a child is still alive? And further still, why canâ€™t a mother also appoint a guardian.
Whether Section 2 (n) (i) and Section S. 44 of the Succession Act which gives preference to the male lineage over the female lineage in choosing a legal and statutory guardian is constitutional;
Whether Section 14 of the Succession Act which awards automatic acquisition of domicile upon marriage to a woman and not to man is constitutional and whether Section 15 of the Succession Act which terminates a womanâ€™s acquired domicile upon legal separation is constitutional. These sections deprive women of choice of domicile and rendered married women second class citizens in that their domicile was transient and dependant on that of their husbandâ€™s whereas that of married men remained permanent.
The court declared as null and void Sections 2 (n) (i); 14, 15, Rule 8 (a) Second Schedule, 27, 43, and 44 of the Succession Act. This means that these Sections are of no legal consequence. Parliament therefore has to enact laws in order to fill the gap or lacuna created.
The writer is the Director of Law and Advocacy for Women in Uganda
Implication of the ruling on adultery