Marriage

Mifumi (U) Ltd & Anor Vs Attorney General & Anor (Constitutional Appeal No. 02 of 2014) [2015] UGSC 13 (6 August 2015);

Flynote: 

Search Summary: 

The appellants in this appeal sought to challenge the decision of the Constitutional Court for failing to find that the custom of paying bride price as a precondition to contracting a valid customary marriage, and the practice of demanding refund of bride price at the dissolution of the marriage were unconstitutional, so notorious that the court ought to take judicial notice of it, and a violation of human rights.

 

The appellants argued that the custom offended Article 31 of the Constitution, which provided that marriage shall be entered into with the free will of the man and woman intending to marry, and that demand for bride price interfered with the free will guaranteed by the Constitution. Further, that the payment of bride price led men to treat their wives as mere possessions, which brought about inequality between men and women and amounted to degrading treatment.

 

The respondents opposed the application and argued that the custom was protected under the Constitution, were everyone was accorded with the right to enjoy and practice their culture. Further, they argued that a person was free to choose any form of marriage from the many available, and that it was their choice to be bound by the requirements of the custom.

Headnote and Holding: 

From the evidence that was adduced, it was found that the custom of bride price in customary marriage was so notorious in its generic form that the courts ought to take judicial notice of it. It was further found that payment of bride price does not fetter the parties’ free consent into marriage, thus, the court declined to declare that it violates free consent of those intending to marry.

 

With regard to refund of bride price, it was found that the practice was unconstitutional, as it devalues the worth, respect and dignity of the woman, and that it was unfair to the parents of the woman to ask a refund of the gifts.

Therefore, it was declared that refund of bride price was unconstitutional and a violation of human rights.

 

Accordingly, the appeal was allowed.

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