By Sylvia Tamale
There is no doubt to me that the offence of criminal adultery is unconstitutional. Article 21(1) of the Constitution states, â€œAll persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.â€ However, the Penal Code definition of adultery sets out different standards for husbands and wives.
The offence appears under â€œOffences Against Moralityâ€, meaning it is one of the mechanisms that sets sexual moral standards for married people. Under Section 154, a husband is guilty of adultery if he has sexual intercourse with a married woman. But a wife commits adultery when she has sexual intercourse with any man! Here, the law imposes double standards on sexual norms. It endorses male sexual promiscuity (as long as he is not trespassing on another manâ€™s â€˜propertyâ€™), but imposes strict control over womenâ€™s sexuality. In addition, a convicted adulterer must pay compensation (for damaged goods?) to the husband of the adulteress. Clearly, this Victorian way of determining human relations is archaic and backward.
There are two main reasons for regulating sexuality and reproductive capacity of married women today. First, it serves to keep womenâ€™s bodies in the domestic arena, where, as â€œdecent wivesâ€ and â€œgood mothersâ€ they remain dependent on their breadwinner husbands. Secondly, and more importantly, it is supposed to guarantee the paternity and legitimacy of the children of the marriage. This is meant to ensure that descent through the male line is retained and that property is bequeathed to the husbandâ€™s offspring. Thus the law ensures that women remain monogamous and stick to one partner, while it (the law) does not disturb or challenge the polygynous sexuality of men.
Adultery should be decriminalised as it employs double moral standards for men and women. It is also senseless for the state to intervene in a relationship involving two consenting adults. Indeed it is ironical that the state will intrude in the bedroom of two consenting and loving adults but steer clear from the bedrooms where husbands regularly abuse and batter their wives (Uganda has no law on domestic violence).
Spouses of adulterers should be left to choose between remaining married to the unfaithful partners or not. Pursuing adultery in courts is a waste of scarce police and prosecutorial resources, and the height of hypocrisy and injustice.
The writer is the Dean of Law, Makerere University