By Edward Anyoli and Winnifred Nanteza

THREE years ago, the NGO mifumi and a group of men and women went to the Constitutional Court wanting bride price to be declared unconstitutional. Through this, they hoped the customary practice of demanding for bride price would be abolished.

They argued that demanding for bride price contranes Articles 25, 31, 33 and 34 of the Constitution and therefore the practice violates the rights of women.

The NGO said the payment of bride price makes men treat their women as mere possessions, which creates conditions of inequality between them.

Mifumi said the practice portrays women as a commodity in a market, which amounts to their degradation.

STATE
The Government was represented by the Attorney General, who argued that the term bride price means different things in different cultures and that the Constitution cannot make a uniform interpretation of it.

Kenneth Kakuru, from the Attoney General’s office, said the requirement to pay bribe price to parents of the bride and a refund at the dissolution of marriage does not contravene Article 31(1) (3) of the Constitution, which permits and recognises various types of marriage.

Kakuru submitted that article 37 of the Constitution gives the right to enjoy, practice, maintain and promote any culture. He added that the requirement is intended to show appreciation to a woman’s parents for taking care of her.

According to Kakuru, if bride price is declared unconstitutional, it would deny people one legitimate way to get married and would instead contravene Article 33 of the Constitution.

JUDGMENT
Five Judges, on March 27, delivered their judgment, in which four ruled that payment of bride price does not contravene the Constitution.

Justice Alice Mpagi said the argument that bride price creates domestic violence in a home cannot stand because violence against women happens the world over. “Violence is more prevalent in countries where the term bride price is unheard of. In India, it is the payment of insufficient dowry by the bride that is the cause of domestic violence and suicide,” Mpagi said.

She added that in the face of the divergent cultural beliefs and practices with different people valuing their own, court should not be quick to slap a blanket declaration, banning them on grounds of unsoundness.

She added that banning bride price would rob the various ethnic groups of the cherished feelings of their identity, dignity and self-worth.

According to Mpagi, some customs ought to be allowed to keep what the people treasure. “Not the slightest attempt was made to prove any of the allegations made. I think this sufficiently takes care of what I have to say about this petition, which I dismiss forthwith.”

Justice Steven Kavuma said parties may decide not to press for the refund of the bride price.

“I find this development commendable as one of the ways of minimising the problems encountered by customarily married couples at the dissolution of their marriages.

I find demanding for refund of bride price not unconstitutional. I therefore, would dismiss the petition,” Kavuma said.

Justice Laeticia Kikonyogo said a refund of bride price cannot be equated to any sum of money or property and any refund violates a woman’s constitutional right to be equal as a co-partner to the man.

She, however, added that: “The aforesaid notwithstanding, in my view, the declaration sought is not essential.

In the result, this petition must fail and it is accordingly dismissed,” she said.

Justice Constance Byamugisha said the petitioners made claims that the payment of bride price was the cause of domestic violence against women, without any evidence.

“There is no scientific or empirical evidence that was adduced by the petitioners to prove the connection between payment of bride price and domestic violence against women.

Moreover, violence against women and men who are in relationships is a worldwide phenomena and the movement to fight domestic violence started in countries where the word ‘bride price’ is not even in their vocabulary,” Byamugisha said.

Byamugisha said any attempt to abolish a cultural practice in a community must take into account the role played by women themselves in the formation of the cultural practice in question.

“In the case of bride price, I have doubts whether the majority of women dislike the practice as the petitioners tried to portray. Customary marriage and the practices which go with it are protected by the Constitution and it would be unjust to slap a constitutional declaration banning the marriage and its practices across the board without the communities concerned being accorded an opportunity to be heard. I would, accordingly, dismiss the petition,” he stated.

Justice Amos Twinomujuni deferred with the four judges, saying in his opinion, the practice of bride price violates all the constitutional provision which were enacted to protect women.

He said bride price no longer serves any useful purpose in society. He added that it has become commercialised, highly exploitative and humiliating to women. He concurred with the petitioners that paying bride price is unconstitutional. “I would allow this petition and make the following declarations: That the practice of demanding and paying bride price as a requirement for recognition of valid customary marriage is unconstitutional and violates articles 31(1)(1)b 31(3) (2) and 33(1) of the Constitution. He said the demand for a refund of bride price as a condition precedent to the dissolution of marriage contravenes the Constitution. Twinomujuni further noted that the demand and payment of bride price dehumanises the woman in a marriage for it portrays her as a chattel that can be sold in a market and subjects her to potential humiliation, cruelty and torture.

The regime of bride price subjects a woman to slavery and servitude when it makes it impossible for her to move out of an abusive marriage, long after it has irretrievably broken down. This is contravention of articles 25 and 44 (b) of the Constitution,” Twinomujuni concluded.