THE REPUBLIC OF UGANDA
IN THE CONSTITUTIONAL COURT OF UGANDA
5 CORAM: HON. MR. JUSTICE S. G. ENGWAU, JA
HON. MR. JUSTICE A. TWINOMUJUNI, JA
HON. LADY JUSTICE C.N.B. KITUMBA, JA
HON. LADY JUSTICE C. K. BYAMUGISHA, JA
HON. MR. JUSTICE S. B. K. KAVUMA, JA
10 CONSTITUTIONAL PETITITONS NOS. 13 /05 /& 05 /06
15 LAW & ADVOCACY FOR WOMEN IN UGANDA ::::::::::: PETITIONER
ATTORNEY GENERAL OF UGANDA :::::::::::::::::: RESPONDENT
JUDGEMENT OF THE COURT
The petitioner, an association that advocates for women rights in Uganda, filed two separate petitions that were later consolidated.
The petitions were brought under Article 137 (3) of the Constitution and The Constitutional Court ( Petitions and References) Rules, 2005 ( S.I. No. 91 / 05) challenging the Constitutionality of some sections of the Penal Code Act and 2n (i) and (ii), 14, 15, 23, 26, 29, 43, 44, of the Succession Act. The petitioner
alleged that the above impugned provisions are contrary to Articles 20, 21, 24, 26, 31, 33, and 44 of the Constitution.
The petitions were supported by the affidavits of Sylvia Tamale, the Dean of the Faculty of Law and an Associate Professor Makerere University.
The petitions sought the following declarations and orders namely:
The section 154 of the Penal Code Act and the relevant provisions of the succession Act enumerated above violate Articles 20, 21,(1), 21 (2), 21 (3), 24, 31 (1), 33(6) and 44( a) of the Constitution of Uganda, 1995 and infringe fundamental human rights enshrined in International Conventions that Uganda is signatory to.
That the relevant provisions of Succession Act and Penal Code Act that violate the Article of the Constitution be declared null and void.
No order as to costs in any event.
Any other or further declaration that this court may deem fit to
The respondent filed answers opposing the petitions. In Constitution petition No. 13 /05, the respondent contended that section 154 of the Penal Code Act is not unconstitutional and does not discriminate against anyone on the grounds of
sex or marriage within the context of the Constitution. He averred that the impugned section is acceptable and demonstrably justifiable in a free and democratic society and fosters the sanctity of marriage which is within the public interest limitation as prescribed by Article 43 of the Constitution.
He further averred that the section does not go against the principles enshrined in
the Constitution and striking it out would encourage immorality and promiscuity
which are contrary to the public policy and the letter and spirit
of the Constitution, particularly Article 126(1) of the Constitution.
In the alternative but without prejudice to the above averments, the respondent contended that if this Court finds that any part of section 154 of the Penal Code
Act is unconstitutional, the Court should recommend amendment of the offending part to bring provisions in line with the Constitution. The answer was supported by the affidavit of Margaret Nabakooza, a Senior State Attorney, in the Directorate of Civil Litigation, Attorney General's Chambers.
In petition No.05 / 06, the respondent denied that the provisions of the Succession Act being challenged by the petitioner are inconsistent with the articles of the Constitution and that they discriminate against anyone on ground of sex or otherwise. It was further averred that the provisions do not subject women to degrading treatment as alleged by the petitioner and they are
acceptable and demonstrably justifiable in a free and democratic society.
He prayed for the dismissal of the petition. The averment was by the affidavit of Benjamin Wamambe, a Senior State Attorney, in the Directorate of Civil Litigation, Attorney General's Chambers.
When the parties appeared before the Registrar of this Court for a scheduling conference under rule 8 (2) of S.I No.91 /05, they agreed on the following issues:-
Whether section 154 of the Penal Code Act is inconsistent with Articles 20, 21, 24, 31, 33(1) and 44 of the Constitution.
2. Whether sections 2(n) (I) ( ii), 23, 26, 27, 29, 43, 44 of the Succession
Act are inconsistent with Articles 20, 21, 24, 26, 31, 33, and 44 of the
When the petition came before us for disposal, Ms. Patricia Muteesi, Senior State Attorney, in the Attorney General's Chambers informed us from the bar that although in both petitions they had denied the allegations, after due considerations, the respondent was conceding that the provisions of the law being challenged by and large violate the provisions of the Articles of the
Constitution. She however, wanted to address us on whether the impugned sections should be struck out.
In reply, Mr. Rwakafuzi, learned counsel for the petitioner pointed out that under article 137 of the Constitution, this Court has powers to pronounce that a given piece of legislation is null and void or to construe it so as to bring it in conformity with the Constitution. He further stated that the petitioner is asking the Court to make declarations on the issues as framed.
Ms. Muteesi then submitted on the provisions of section 154 (supra). This section states as follows:
"(1) Any man who has sexual intercourse with any woman not being
his wife commits adultery and is liable to imprisonment for a term not exceeding twelve months or a fine not exceeding two hundred thousand shillings; and, in addition, the court shall order any such man on first conviction to pay the aggrieved party compensation of six hundred shillings and on subsequent conviction not exceeding twelve hundred thousand shillings as may be so ordered.
(2) Any married woman who has sexual intercourse with any man not being her husband commits adultery and is liable on first conviction to a caution by the court and on subsequent conviction to imprisonment for a term not exceeding six months."
The learned Senior State Attorney cited to us the decision of this court in the case of Uganda Association of Women Lawyers & 5 other V Attorney General - Constitutional Petition No.2 / 03.
What learned counsel was asking us to do was not to strike out the offence of adultery form the Penal Code since it was not being challenged.
Mr. Rwakafuzi did not agree. He submitted that the basis of the petition is discrimination. He cited article 21 that protects equality and freedom from discrimination. The article provides as follows:
"(1) All persons are equal before and under the law in all spheres of political,
economic, social and cultural life and 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, social or economic standing, political opinion
(3) For purposes of this article, "discriminate" means to give different treatment to different persons attributable only or mainly to their respectivedescriptions by sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability.
Learned counsel also cited article 24 which provides for respect for human dignity and protection from inhuman treatment. The article provides as follows:
" No person shall be subjected to any form of torture or cruel, inhuman or degrading treatment of punishment"
The other articles are 31(1) that deals with the rights of the family. The article is
couched in the following words:
" (1) A man and a woman are entitled to marry only if they are each of age of eighteen years and above and are entitled at that age