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Court Case:
"The
Uganda Court decided therefore,
that the grounds for divorce as set out under the Divorce Act, should
equally apply to both sexes. Women, like men, should have the right to
divorce their husbands for the sole reason of adultery. The compensation
for adultery, alimony and settlement related with the divorce should also
equally apply to both sexes."
________________________________________________________________________
Uganda
Association of Women Lawyers and 5 Others vs. The Attorney General
Const. Petit. No. 2 of 20023/10/2004
(Uganda,Constitutional Court)
Summary of Facts
The Petitioners filed a petition with the Constitutional Court, asking for
the declaration that Sections 4(1) &(2), 5, 21-24 and 26 of the Divorce Act
were unconstitutional and null and void. These sections provided that
adultery was an adequate reason for a man to divorce his wife, and would
place him favorably in matters related to divorce (e.g. in relation to
compensation for adultery, alimony, and property settlement). However, a
woman, in addition to proving adultery, had to show that her husband
committed desertion, rape, bigamy, or sodomy in order to divorce her
husband and enjoy the related benefits. The Petitioners argued that as
these sections of the Divorce Act established different grounds of divorce
for men and women, they were discriminatory on grounds of gender.
The Respondent, on the other hand, argued that these sections were not
unconstitutional, as Section 273(1) of the Constitution granted the Court
power to make the necessary modification, adaptations, qualifications, and
exceptions to bring the laws in conformity with the Constitution. The
Respondent insisted that the Court could modify the sections of the Divorce
Act, including declaring them null and void, if they were inconsistent with
the Constitution.
Issue
Whether Sections 4(1) &(2), 5, 21-24 and 26 of the Divorce Act were
constitutional, when viewed in light of Section 273(1) of the Constitution.
Summary of the Court's Analysis
The evidence of the case showed that Sections 4(1) &(2), 5, 21-24 and 26 of
the Divorce Act were discriminatory on grounds of gender. These Sections
provided different grounds of divorce for men and women. Such gender
discrimination violated articles 21(1) & (2), 31(1), 33(1), & (6) of
the
Constitution that guaranteed gender equality. The Court decided
therefore,
that the grounds for divorce as set out under the Divorce Act, should
equally apply to both sexes. Women, like men, should have the right to
divorce their husbands for the sole reason of adultery. The compensation
for adultery, alimony and settlement related with the divorce should also
equally apply to both sexes.
Conclusion
Sections 4(1) &(2), 5, 21-24 and 26 of the Divorce Act were inconsistent
with the Constitution, and they should apply equally to both sexes.
Commentary
The sections of the Divorce Act reflected the subordination of women in a
patriarchal society. When the Act was drafted in 1904, enforcing women's
subordination might have been the core objective of the law. The
relationship between men and women and their respective roles in society
changed significantly during the past century. The law should reflect
such
reality. After all, the very fact that the original Act made an
unjustifiable distinction between men and women was disastrous.
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