Wakilii

Mifumi Uganda Limited and 12 Others v Attorney General of Uganda and Another (Constitutional Petition 12 of 2007)

Constitutional Court · [2010] UGCC 13 · 2010 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) seeking declarations that the custom of bride price is unconstitutional
Decision
Petition dismissed by a majority of four to one, with no order as to costs

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Holding

The Constitutional Court, by a majority of four to one, dismissed a petition challenging the custom of bride price. The majority held that the demand, payment and refund of bride price as conditions of a customary marriage and its dissolution are not per se unconstitutional, being a cultural practice protected under Article 37. The custom did not inherently violate the rights to equality (Article 21), dignity (Articles 24, 33) or free consent to marry (Article 31(3)). Abuses arising from the practice, including refusal to bury a deceased wife pending refund, could be remedied under Articles 43 and 50 and ordinary penal and civil law rather than by striking down the custom. Twinomujuni JA dissented.

Facts

MIFUMI (U) Ltd, a women's-rights NGO, together with individual petitioners, challenged the constitutionality of bride price as practised by several Ugandan tribes, including the Japadhola, Langi and Banyankole. They contended that demanding and paying bride price as a condition for a valid customary marriage, and demanding its refund as a condition for dissolution, perpetuated inequality between men and women, fettered free consent to marry, and treated women as commodities. The petition was supported by numerous affidavits, principally that of Felicity Atuki Turner, recounting forced marriages, domestic violence, women trapped in abusive marriages by inability to refund bride price, and corpses denied burial pending refund. The Attorney General and Mr Kenneth Kakuru opposed the petition, arguing that bride price (variously called enjugano, mutwalo, akituk) is a misunderstood, symbolic cultural practice protected under Article 37, that customary marriage is one of several voluntary marriage options, and that the custom does not entail the sale of a bride. The respondents further argued that the custom varies between cultures and had to be proved.

Issues

  1. Whether the petition discloses issues for constitutional interpretation under Article 137.
  2. Whether the payment of bride price before marriage and its refund during divorce are customs judicially noticed requiring no further proof.
  3. Whether bride price means different things in the different cultures of Uganda such that the Constitutional Court cannot make a uniform interpretation of the custom.
  4. Whether the custom of payment of bride price by the groom's family to the bride's family promotes inequality in marriage contrary to Article 21(1), (2) and (3) of the Constitution.
  5. Whether the demand for bride price by parents of the bride as a condition precedent to marriage fetters the free consent of the man and woman intending to marry contrary to Article 31(3) of the Constitution.
  6. Whether the demand for refund of bride price as a condition precedent to dissolution of a customary marriage contravenes the right to free consent and equality of the parties to a marriage.
  7. Whether the demand and payment of bride price and the demand for its refund are customs practised in pursuit of culture and guaranteed under Article 37 of the Constitution.
  8. Whether the demand for bride price as a condition precedent to burial of a deceased bride is a custom repugnant to good conscience.

Orders

  • Petition dismissed.
  • No order as to costs.

Key headnotes

Constitutional Law — Jurisdiction — Petitions disclosing a question of constitutional interpretation
Where a petitioner alleges that an act, omission or custom done under any law is inconsistent with the Constitution and seeks a declaration and redress, the Constitutional Court is duty bound to exercise its interpretive jurisdiction under Article 137, provided the petition shows on its face that interpretation of a constitutional provision is required.
Statutory Interpretation — Constitutional Construction — Generous, purposive and harmonious interpretation
Constitutional provisions, particularly those entrenching fundamental rights, must be given a broad, liberal and purposive construction that expands rather than extenuates their scope, and the Constitution must be read as an integrated whole so that no provision destroys another.
Evidence — Judicial Notice — Proof of customary law
A party who alleges a custom at variance with the general law must in principle prove it by evidence until the custom becomes so notorious that courts take judicial notice of it; however, under the liberal approach informed by Article 126(1) and section 56(b) of the Evidence Act, a widely practised custom such as bride wealth may be judicially noticed without further proof.
Family Law — Customary Marriage — Bride price as a cultural practice protected under Article 37
The custom of giving bride price (bride wealth) as a condition for a valid customary marriage, and of refunding it on dissolution, is a cultural practice protected under Article 37 of the Constitution and is not per se unconstitutional.
Human Rights — Equality and Free Consent — Effect of bride price on rights of women
The payment of bride price does not of itself contravene the rights to equality (Article 21), dignity (Articles 24 and 33) or free consent to marry (Article 31(3)), since parties freely choose customary marriage from among recognised marriage options; abuses committed in the exercise of the custom are individual wrongs remediable under Articles 43 and 50 and the ordinary law, not grounds to strike down the custom.
Family Law — Customary Practices — Refusal to bury a deceased pending refund of bride price
The custom of denying burial to the body of a deceased woman until bride price is paid or refunded is repugnant to good conscience and a threat to the rights and dignity of the living and the deceased, and may be addressed under the Penal Code Act and other laws.

Legislation cited (21)

  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.20
  • Constitution of Uganda 1995 art.21
  • Constitution of Uganda 1995 art.24
  • Constitution of Uganda 1995 art.31
  • Constitution of Uganda 1995 art.32
  • Constitution of Uganda 1995 art.33
  • Constitution of Uganda 1995 art.37
  • Constitution of Uganda 1995 art.43
  • Constitution of Uganda 1995 art.50
  • Constitution of Uganda 1995 art.126
  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 National Objectives and Directive Principles of State Policy XXIV
  • Evidence Act (Cap 6) s.55
  • Evidence Act (Cap 6) s.56
  • Evidence Act (Cap 6) s.46
  • Judicature Act s.15
  • Penal Code Act s.121
  • Penal Code Act s.150A
  • Constitutional Court (Petitions and References) Rules rule 3
  • Indian Evidence Act s.48

Cases cited (28)

  • Ismael Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
  • Major General David Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)
  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Attorney Vs Momodou Jube (1984) AC 689
  • R - Vs - Big M Drug Mart Ltd. [1985 DLR 4th 321, 395 - 6th(Supreme Court of Canada per Dickson, J.
  • Unity Dow - vs - Attorney General of Botswana (1992) LRAC 623
  • De Clerk & Snot - vs - Du Plassis & Another [1990] 6 BLR 124
  • Troop - Vs Dulles 35 6 US 86 2L Ed. 785 at 590 (1956)
  • Republic - vs - El-Menu [1969] EA 357
  • Uganda-vs Kabaka's Government [1965] EA 393
  • R Vs Amkeyo EAPLR [1917-1918]4
  • Alai Vs Uganda 1967 EA 596
  • Angu Vs Attah (1916) P.C 74 - 28, 43
  • Ndenbera S/O Mwandawale 1947 14 EACA 85
  • R.V Gansambizi Wegonga [1948] 15 EACA 50
  • Ernest Kinyanjui Kimani V Muiru Gikango and Another 1965 E.A 735
  • Pande s/o Nawuku Vs R [1951] 18 EACA 263
  • Kigozi Vs Njuki 1943 6 ULR 113
  • Wongo V Dominiko Manano [1958] E.A
  • Mwangiru Vs Mumbi 1967 E.A 639
  • Nemezio Ayiiya v Sabina Onzia Ayiiya (Divorce Petition No. 8 of 1973)
  • Florence Kentungo v Yolamu Katuramu (Civil Suit No. MFP 6 of 1991)
  • Peteconia Mpirirwe v Oliver Ninsabimaana (HCCS No. MKA 5 of 1990)
  • Aggrey Owori v Rosette Tagire (HCCS No. 178 of 2000)
  • Attorney General v Osotraco Ltd (Civil Appeal No. 32 of 2002)
  • Julius Rwabinumi v Hope Bahimbisokwe (Civil Appeal No. 30 of 2007)
  • Major General James Kazini v Attorney General (Constitutional Petition No. 8 of 2009)
  • Emmy Ndyamureeba v Eva Namanya (HC Divorce Cause No. 1 of 2006)
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