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Uganda Association of Women Lawyers and Ors v Attorney General (Constitutional Petition No. 2 of 2003)

Constitutional Court · [2004] UGCC 1 · 2004 Petition Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 challenging the constitutionality of statutory provisions
Decision
Petition allowed; the impugned sections of the Divorce Act declared unconstitutional and void, with the affected divorce grounds and remedies now applicable equally to both spouses

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Holding

The court held the petition was not time-barred: the impugned Divorce Act provisions constitute a continuing breach, and rule 4(1) of Legal Notice No.4 of 1996, imposing a 30-day limit, is inconsistent with Article 3(4) and void. Article 273 does not oust the court's Article 137 jurisdiction to nullify existing law. Sections 4(1), 4(2), 5, 21, 22, 23, 24 and 26 of the Divorce Act, prescribing different divorce grounds and remedies according to sex, discriminate contrary to Articles 21, 31 and 33 and are unconstitutional and void. The grounds for divorce and the remedies of damages, costs, alimony and property settlement now apply equally to both spouses.

Facts

Six petitioners, including the Uganda Association of Women Lawyers, challenged several provisions of the Divorce Act (Cap 249), enacted in Uganda in 1904 and derived from the English Matrimonial Causes Act 1857. The provisions prescribed different treatment by sex: a husband could obtain a divorce on proof of adultery alone, while a wife had to prove aggravated grounds such as incestuous adultery, bigamy, cruelty or desertion; only a husband was required to name a co-respondent; only a husband could claim damages from an adulterer and recover costs from a co-respondent; alimony was available only to wives; and a property settlement on adultery favoured only husbands. The petitioners, mostly lawyers, contended these provisions discriminated against women and undermined equality between the sexes; two male deponents testified to hardship suffered under the differing grounds. The parties agreed there was no factual dispute and that the matter turned on legal interpretation of the Constitution and the Act. The Attorney General raised a preliminary objection that the petition was time-barred and relied on Article 273 as saving the existing law.

Issues

  1. Whether the petition was time-barred under rule 4(1) of the Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992 (Legal Notice No.4 of 1996).
  2. Whether the impugned sections of the Divorce Act are inconsistent with and contravene the Constitution as alleged.
  3. Whether Article 273 of the Constitution precludes the Constitutional Court from nullifying an existing law inconsistent with the Constitution.
  4. Whether the petitioners are entitled to the reliefs prayed for.

Orders

  • Preliminary objection overruled.
  • Petition allowed.
  • Sections 4(1), 4(2), 5, 21, 22, 23, 24 and 26 of the Divorce Act declared unconstitutional and void for being inconsistent with Articles 21, 31 and 33 of the Constitution.
  • No order made as to costs.

Key headnotes

Constitutional Law — Access to the Constitutional Court — Time limit in subsidiary legislation
Rule 4(1) of the Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992 (Legal Notice No.4 of 1996), which imposes a 30-day limit on the presentation of a constitutional petition, conflicts with Article 3(4) of the Constitution, which sets no time limit on the citizen's right and duty to defend the Constitution, and is therefore unconstitutional, null and void.
Constitutional Law — Limitation — Continuing breach of the Constitution
Where the impugned provisions of a law constitute a continuing breach of the Constitution, every day they remain in force is a fresh breach, and the 30-day limitation in rule 4(1) does not render a petition challenging them time-barred.
Constitutional Law — Amendment of the Constitution by implication
A law, including subsidiary legislation, that adds to, varies or repeals a provision of the Constitution amends it, whether expressly or by implication; it is the effect, not the form, that determines whether an amendment has occurred, and an amendment not made through the constitutional amendment procedure is invalid.
Statutory Interpretation — Article 273 — Existing law and the jurisdiction of the Constitutional Court
Article 273 empowers all courts to construe existing law with such modifications and adaptations as bring it into conformity with the Constitution, but it does not save oppressive provisions nor oust the Constitutional Court's jurisdiction under Article 137 to declare an existing law unconstitutional and void.
Human Rights — Equality and non-discrimination on the ground of sex
Statutory provisions that prescribe different grounds and remedies for divorce according to the sex of the spouse give different treatment attributable to sex and constitute discrimination contrary to the constitutional guarantees of equality and non-discrimination.
Family Law — Divorce — Equal rights of spouses on dissolution of marriage
Men and women are entitled to equal rights in marriage and on its dissolution; once discriminatory divorce provisions are struck down, the grounds for divorce and the remedies of damages, costs, alimony and property settlement apply equally to both spouses.

Legislation cited (22)

  • Divorce Act (Cap 249) s.3
  • Divorce Act (Cap 249) s.4(1)
  • Divorce Act (Cap 249) s.4(2)
  • Divorce Act (Cap 249) s.5
  • Divorce Act (Cap 249) s.21
  • Divorce Act (Cap 249) s.22
  • Divorce Act (Cap 249) s.23
  • Divorce Act (Cap 249) s.24
  • Divorce Act (Cap 249) s.26
  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.3(4)
  • Constitution of Uganda 1995 art.21
  • Constitution of Uganda 1995 art.31
  • Constitution of Uganda 1995 art.33
  • Constitution of Uganda 1995 art.43
  • Constitution of Uganda 1995 art.50
  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.273
  • Constitution of Uganda 1995 art.274
  • Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992 (Legal Notice No.4 of 1996) rule 4(1)
  • Interpretation Decree No.18 of 1976 s.2
  • Matrimonial Causes Act 1857 (England)

Cases cited (17)

  • Joyce Nakachwa v Attorney General and 2 Others (Constitutional Petition No. 2 of 2001)
  • Attorney General v Dr. James Rwanyarare and 9 Others (Miscellaneous Application No. 3 of 2002)
  • Ismail Serugo v Kampala City Council and Another (Constitutional Appeal No. 2 of 1997)
  • Zachary Olum and Others v Attorney General (Constitutional Petition No. 6 of 1996)
  • Pyarali Abdul Rasul Esmail v Adrian Sibo (Constitutional Petition No. 9 of 1997)
  • Dr. James Rwanyarare v Attorney General (Constitutional Petition No. 11 of 1997)
  • Paul Ssemogerere and Others v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Hajji Sebbagala (supra)
  • Sarapio Rukundo (supra)
  • Sarah Longwe vs. Intercontinental Hotel [1934] 4 LRC 22
  • Mhikungu vs. Republic [2002] LLR 2073 CAK
  • Unity Dow v Attorney General of Botswana [1992] LRC (Const) 623
  • Dadia Parveen vs. Bangladesh Biman Corporation [1996] 3 CHRLD
  • Ephrahim v Pastory and Another (Civil Appeal No. 70 of 1989) [1990] LRC (Const) 757
  • Bull v Minister of Home Affairs [1987] LRC (Const) 547
  • R v Big M Drug Mart Ltd [1996] LRC (Const) 332
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.