Law & Advocacy for Women in Uganda v. Attorney General

L, a women’s rights advocacy group, filed two petitions dealing with the constitutional validity of sections of the Ugandan Penal Code Act regarding adultery and sections of the Succession Act regarding gender equality in succession and inheritance.

L argued that s 154 of the Penal Code Act was inconsistent with Articles 20,[1] 21,[2] 24,[3] 26,[4] 31,[5] 33(1)[6] and 44[7] of the Ugandan Constitution. Under s 154 of the Penal Code Act, married men having sex with unmarried women were not considered to have committed adultery, whereas married women committed adultery if they have sex with unmarried men. L argued that the law treated women derogatorily and claimed that it perpetuated the inferior status of women. The Attorney General argued that s 154 did not discriminate on the ground of sex. This was because the different treatment between men and women under the section was justifiable under Article 43[8] of the Constitution to foster the sanctity of marriage. The Attorney General also argued that striking out s 154 would encourage immorality and promiscuity, which were contrary to public policy and the spirit of the Constitution.

L also challenged the constitutionality of ss 2(n) (I) (ii), 23, 26, 27, 29, 43 and 44 of the Succession Act in accordance with Articles 20, 21, 24, 26, 31, 33(1) and 44 of the Constitution. L challenged s 2(n) (i) and (ii) of the Succession Act as unconstitutional because it preferred a male heir to a female heir. Moreover, s 27 of the Act provided that, when a man died, his property would be distributed to his heir(s) and provided no such arrangement for inheriting the property of a deceased woman. Furthermore, s 43 of the Act gave only fathers the right to appoint a guardian. In addition, s 44 of Act only allowed male relatives to be guardians refusing female relatives the same right. Under ss 15 and 16, a woman could take her husband’s domicile but a man could not take his wife’s domicile. Therefore, L argued that the above sections of the Act were unconstitutional, since such different treatment discriminated against women purely based on gender.

L argued that the relevant provisions of the two Acts be declared null and void. The Attorney General claimed that if the relevant provisions were found to be inconsistent with the Constitution, the Court should order the modification of the section so that it is consistent with the Constitution.

NOTES:

[1]   Article 20 provided: ‘(1) Fundamental rights and freedoms of the individual are inherent and not granted by the State. (2) The rights and freedoms of the individual and groups enshrined in this Chapter shall be respected, upheld and promoted by all organs and agencies of Government and by all persons.’

[2] Article 21 provided: ‘(1) All 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. (2) Without prejudice to clause(1) of this article, a person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or disability. (3) For the purposes of this article, “discriminate” means to give different treatment to different persons attributable only or mainly to their respective descriptions by sex, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or disability. (4) Nothing in this article shall prevent Parliament from enacting laws that are necessary for (a) implementing policies and programmes aimed at redressing social, economic or educational or other imbalance in society; or (b) making such provision as is required or authorised to be made under this Constitution; or (c) providing for any matter acceptable and demonstrably justified in a free and democratic society. (5) Nothing shall be taken to be inconsistent with this article which is allowed to be done under any provision of this Constitution.’

[3] Article 24 provided: ‘No person shall be subjected to any form of torture, cruel, inhuman or degrading treatment or punishment.’

[4] Article 26 provided: ‘(1) Every person has a right to own property either individually or in association with others. (2) No person shall be compulsorily deprived of property or any interest in or right over property of any description except where the following conditions are satisfied (a) the taking of possession or acquisition is necessary for public use or in the interest of defence, public safety, public order, public morality or public health; and (b) the compulsory taking of possession or acquisition of property is made under a law which makes provision for (i) prompt payment of fair and adequate compensation. prior to the taking of possession or acquisition of the property; and (ii) a right of access to a court of law by any person who has an interest or right over the property.’

[5] Article 31(1) provided: ‘Men and women of the age of eighteen years and above, have the right to marry and to found a family and are entitled to equal rights in marriage, during marriage and at its dissolution.’

[6] Article 33(1) provides: ‘Women shall be accorded full and equal dignity of the person with men.’

[7] Article 44 provides: ‘Notwithstanding anything in this Constitution, there shall be no derogation from enjoyment of the following rights and freedoms (a) freedom from torture, cruel, inhuman or degrading treatment or punishment; (b) freedom from slavery or servitude; (c) the right to fair hearing; (d) the right to an order of habeas corpus.’

[8] Article 43 provides: ‘(1) In the enjoyment of the rights and freedoms prescribed in this Chapter, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest. (2) Public interest under this article shall not permit (a) political persecution; (b) detention without trial; (c) any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution.’

[Adapted from INTERIGHTS summary, with permission]

In declaring the Penal Code Act and Succession Act invalid in part, the Court held that:

(1) According to Article 2(1) and (2), the Constitution was the supreme law of the land. It authorized the Court to declare unconstitutional any law which was inconsistent with its terms.

(2) The Attorney General conceded that the challenged provisions of the Penal Code Act and the Succession Act did violate the Constitutional provisions. The Penal Code Act was inconsistent with Article 21 and Article 31(1). These Articles prohibited discrimination on the grounds of sex and gave equal rights between married couples at and in marriage and at its dissolution.

(3) Under Article 137 of the Constitution, the Court had the power to pronounce that a given piece of legislation was null and void. The provisions of this Article did not give the Court the power to modify a law that was found to be inconsistent or in contravention with the Constitution provisions (Uganda Association of Women Lawyers & Ors v Attorney General Constitutional Petition No. 2 / 03 considered).

(4) Section 154 of the Penal Code was declared null and void on the basis that it was inconsistent with Articles 20, 21, 24, 31, 33(1), and 44 of the Constitution.

(5) Sections 2(n) (I) (ii), 23, 26, 27, 29, 43 and 44 of the Succession Act and Rules 1, 7, 8, and 9 of the Second Schedule of the same Act were inconsistent with Articles 21(1)(2)(3) 31, 33(6) of the Constitution and were also declared null and void.

[Adapted from INTERIGHTS summary, with permission]