New Domestic Relations Bill is acceptable to most Ugandans

Jul 13, 2008

THE Uganda Law Reform Commission recently issued two draft Bills to replace the Domestic Relations Bill (DRB) 2005 that was rejected by Muslims.<i> Hamis Kaheru</i> and <i>Madinah Tebajjukira </i>interviewed the commission chairman, Prof. Joseph Kakooza, on the new bills which appear to be acceptabl

THE Uganda Law Reform Commission recently issued two draft Bills to replace the Domestic Relations Bill (DRB) 2005 that was rejected by Muslims. Hamis Kaheru and Madinah Tebajjukira interviewed the commission chairman, Prof. Joseph Kakooza, on the new bills which appear to be acceptable to most Ugandans.

Why did you split the DRB into two?
When the Bill went to Parliament in 2005, the Muslims were not happy. They demonstrated in town, went to the Speaker and said we don’t accept it. This is how we came to have two separate Bills, the Domestic Relations Bill (DRB) for non Muslims and the Administration of Muslim Personal Law.

Why have you put the Hindu and Bahai in the same Bill with Christians?
The Bahai community in Uganda gave us a memorandum and they were in agreement with the Christian principles both on marriage and divorce. They do not accept polygamy. The Hindu also do not accept polygamy. In that Bill, there are sections which say the Bahai and Hindu shall enter into marriage according to their particular religious principles. Another section provides for customary marriages provided those customs do not offend the law.


How will the Muslims’ law be implemented?

The Constitution, under Article 129, provides that Parliament may by law establish subordinate courts. Those are lower courts under the High Count. Among the subordinate courts are Qadhi’s courts. Those Qadhi’s courts will deal with marriage, divorce, guardianship and inheritance of property, which constitute domestic relations and that gives the Muslims a strong constitutional right to have their own law.

What are qualifications of a Qadhi?
Qadhis must be Muslim and qualified in Islamic law. They are also required to have an ordinary degree. Qadhis at the lower level will need a certificate in law but the Chief Qadhi must have a degree in secular law to be at the same level as a Chief Magistrate. The Chief Qadhis will have two degrees, in ordinary law and Sharia law? You don’t need a Chief Qadhi in every chief magisterial area. You may have one for each region. For appeals to the High Court, judges who are not Muslims are still competent because what will go to the High Court is not a full case but only points of law. The High Court judges will apply Islamic law not secular law. The advocates appearing before them must be able to present Islamic law.

Who will appoint the Qadhis?
The Judicial Service Commission (JSC), in consultation with the Uganda Muslim Supreme Council (UMSC). The UMSC will determine their qualifications in Sharia. They will be paid, I presume, the same salary as the lay chief magistrate (from the Consolidate Fund) because they will be at the same level. It is because of the desire to give them the same status that we want them to have the qualification in law like an ordinary lawyer, go to the Law Development Centre then become advocates. The Chief Qadhi will be a judicial officer, not a religious leader.

Muslim men can still marry girls below the age of 18?
There has been a belief that a Muslim girl is ready for marriage at the age of puberty when she gets her first menstrual period. Fortunately, we had a technical committee of 15 Islamic scholars and they said looking at the different excerpts in Sharia, not only in Uganda but also outside, they are now satisfied that the age of marriage does not have to be at puberty. It can be later. They have accepted the constitutional age of 18 years.


What does this mean?

It means a Muslim who marries a girl who is below 18 years would be committing defilement. Defilement is having sexual intercourse with a woman under the age of 18. Even marrying her does not exempt you from being prosecuted for defilement.

What about inheritance?
When you die intestate (without a will), all the children share your property equally but if you make a will, you are free to give this one more than the other one. Under Islamic law, girls take less. This is unconstitutional but Muslims said that is one of the fundamental principles in Islam.

What about consent to marriage?
The Constitution says the boy and girl shall give consent. It does not say the parents or guardians shall also give consent. The Marriage Act requires consent of the parents if you are below the age of 21. The parent could refuse but the refusal can be overruled by court. But the Islamic Bill, following Islamic principles of law, is saying the consent of a boy and a girl is not enough; parents or guardians must also consent. That is offending the Constitution and if we fail to resolve it through consultations, we shall leave it to Parliament.

How would Parliament go about it?
The way out is may be for Parliament to amend the Constitution or to seek interpretation of the Constitution. There is a conflict in the Constitution itself. It gives a right to practice one’s religion, and then says don’t practice it this way. The Constitution cannot give and take away. What it has given is yours.

What about polygamy?
For Muslims, the leader of the team said it’s a right. Prophet Muhammad (PBUH) reportedly said you can marry more than one, but he did not make it an obligation. For customary marriages, many respondents, especially women activists, said it is abusing the dignity of the women and should be abolished. But the law does not work in a vacuum. The law cannot legislate for what is impossible. You may put it in law but it may not work and in the end, the law has no force. Polygamy as a custom will remain, not only in Uganda, but also in all African countries and even beyond. What goes as mistresses in Europe are practically wives. Ugandans say much as polygamy appears to be bad, it can’t be abolished by law. Muslims have their own principles which govern getting a second, third and fourth wife. Those will remain so long as the man observes the Sharia. For non Muslims, it’s practically the same requirements as Muslims: capacity to maintain and feed them equally and consent of the first wife; sort of accepting that they can live together.

For non-Muslims, polygamy is allowed only under customary marriages?
Yes. If you marry under custom you do not go to Church. Once the first marriage is customary, you can marry under customary law even 100 or more, provided the custom allows it. If you have a marriage from the Church or the registrar, you cannot get another wife even under customary law unless you have divorced the first wife. In other words,you cannot mix the marriages.

In the first Bill, Muslims rejected the aspect of proving capacity to marry more than one wife. Have you removed it?
We have left it to the principles of Sharia. The Qadhi will ask whether by the time of marriage the man was competent as per Sharia requirements.

If the Qadhi believes upon the evidence given that the man did not satisfy the requirements of the Sharia, then the marriage is not valid.

What is in the two Bills on conjugal rights?
In the DRB for non-Muslims, whatever is regarded as property of the family is co-owned by the husband and wife both in civil, Christian and customary marriages. Once you acquire a house when you are already husband and wife, it belongs to both of you irrespective of how much each of you contributed. Very often the wife will be paying less, or even not paying a single shilling, but a mere looking after your husband, family, washing clothes for him, cooking, feeding the children, is a contribution. Co-ownership means 50-50. If the husband dies, the widow will take her 50% matrimonial property and his 50% will go to his heir or relative.

What about property acquired before marriage?
It is not covered in the matrimonial property. It remains the woman’s alone or the man’s alone, unless the owner brings it into the pool and says ‘though I had this before marriage, it’s ours together’.

Does the Bill cater for marital rape?
No. There are grounds for refusing sex like after child birth, poor health condition after surgery, monthly periods or anything which makes it unhealthy to have sex. In such conditions, a man will not force her and if he does, it’s cruelty. We don’t regard it as rape as originally suggested, but it can be a ground for separation. But sex will be denied only if you have a good reason, otherwise marriages will break if you have no genuine reason and you refuse sex.

Is cruelty a criminal offence?
No. Making it criminal would bring in the Police and that will be going too far. A woman can go to court and accuse you of a civil wrong (tort) but not the Police or DPP coming in to prosecute. They only come in if it amounts to severe injury, making it a criminal offence under the Penal Code. Having sex when she is in conditions which could make her health bad can go as a criminal offence but not rape as such.

What do the bills say on marriage gifts?
Gifts mean a token of appreciation to the parents for bringing up a girl well, not a purchase. It should remain. But If gifts are not given the marriage is still valid. Demanding them will be an offence, and using the failure to pay bride wealth to refuse a marriage will be an offence.

What about inheritance of widows?
Traditionally, taking one’s widow was a way of maintaining the widow of your relative. But people have abused it and take them by force. Now we are saying taking a widow as a custom against her consent is abolished. But for the purpose of maintenance, marriage of a widow with her free consent is permissible. Then having sex with her is sort of a right going with that maintenance in marriage.

Why do you think these two bills are going to be more acceptable than the original DRB?
Now that the Muslim community is satisfied, I do not see any objection. The Christian churches also said they were happy with the DRB after we dropped the Cabinet proposal that men and women who have stayed together for 10 years will be presumed to be married. Both Muslims and non Muslims objected to cohabitation.

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