Wakilii

Women's Probono Initiative v Attorney General (Constitutional Petition No. 12 of 2021)

Constitutional Court · [2025] UGCC 6 · 2025 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3)(a) challenging the constitutionality of statutory provisions and the custom and practice of polygamy.
Decision
Petition dismissed; each party to bear its own costs.

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Constitutional Court (Tibulya JCC, the other four Justices concurring) dismissed the petition. Exempting polygamous men from bigamy under section 153 (now 142) of the Penal Code Act, and recognising polygamy under section 4(2) of the Customary Marriage (Registration) Act and section 2 of the Marriage and Divorce of Mohammedans Act, do not violate Articles 21, 24, 31, 32, 33 or 43. Polygamous and monogamous marriages are governed by different legal regimes and are intrinsically unequal categories, so the equality and non-discrimination guarantees are not engaged. Polygamy is a constitutionally protected matter of choice under Articles 29, 31 and 37, saved by Article 21(5), and is not inherently torture.

Facts

The Women's Probono Initiative, a human-rights advocacy organisation, petitioned under Article 137(3)(a) challenging the constitutionality of laws and the custom of polygamy. It contended that sections 2(h) and 2(gg) of the Penal Code Act, by defining husband and wife as parties to a monogamous marriage, exempted polygamous husbands from the offence of bigamy under section 153 (now 142), and that this, together with section 4(2) of the Customary Marriage (Registration) Act and section 2 of the Marriage and Divorce of Mohammedans Act permitting polygamy, discriminated against women and violated their rights to equality, dignity, health, freedom from torture, and equal property rights. The petitioner relied on research papers, government surveys, UN reports and foreign judgments, and asked the court to take judicial notice of the practice. The Attorney General opposed, arguing that polygamy is a constitutionally protected cultural and religious practice entered into by free consent, with monogamy available as an alternative. The petition was supported by the affidavit of Elizabeth Achola. The matter was heard on 11 June 2024.

Issues

  1. Whether the custom and practice of one man marrying more than one wife exempts polygamous husbands from the crime of bigamy in sections 2(h), 2(gg) and 153 (now 142) of the Penal Code Act, and is therefore inconsistent with the right to be free from discrimination on the ground of sex guaranteed in Article 21(1) of the Constitution.
  2. Whether the custom and practice of polygamy violates women and children's right to health (and freedom from torture) contrary to Articles 24, 43 and 44 of the Constitution.
  3. Whether the practice and custom of polygamy contravenes women's rights to an equal share of property at, in and upon dissolution of marriage guaranteed under Article 31(1)(b) of the Constitution.
  4. Whether the omission by the Government to outlaw the custom and practice of polygamy contravenes Articles 32(2), 32(5) and 33(1) of the Constitution.
  5. Whether section 4(2) of the Customary Marriage (Registration) Act, and section 2 of the Marriage and Divorce of Mohammedans Act, are inconsistent with Article 21(1)-(3) of the Constitution on grounds of sex.
  6. Whether the petitioner is entitled to the declarations and orders prayed for.

Orders

  • The petition is dismissed.
  • Each party shall bear its own costs.

Key headnotes

Constitutional Law — Equality and Non-Discrimination (Article 21) — Requirement of Similarly-Situated Comparators
The constitutional guarantee of equality and freedom from discrimination is engaged only where the persons alleging unequal treatment are similarly situated; differential treatment of categories governed by distinct legal regimes does not necessarily result in inequality or discrimination.
Constitutional Law — Equality — Bigamy Exemption for Polygamous Men (Penal Code Act s.153/142)
The exemption of polygamous men from the offence of bigamy under section 153 (now 142) of the Penal Code Act does not offend Article 21(1)-(3), because polygamous and monogamous marriages are governed by different legal frameworks and are intrinsically unequal categories.
Family Law — Polygamy as a Matter of Free Choice — Articles 29, 31 and 37
Polygamy and monogamy are not personal characteristics but conditions resulting from the exercise of a constitutionally protected freedom of choice under Article 31; where a person has the opportunity to exercise that choice, there is no violation of the rights to equality and non-discrimination.
Statutory Interpretation — Harmonious Interpretation of the Constitution and the Saving in Article 21(5)
The Constitution must be interpreted as an integral whole so that no provision destroys another; because polygamy is protected under the freedoms of conscience, religion (Article 29), marriage (Article 31) and culture (Article 37), Article 21(5) saves the practice from any inconsistency with Article 21.
Family Law — Customary and Mohammedan Marriage — Gender-Neutral Recognition of Polygamy
Section 4(2) of the Customary Marriage (Registration) Act, which provides that customary marriages may be polygamous, is gender neutral and cannot be impugned for permitting only men to marry polygamously; the absence of polyandry derives from community rites, not from the statute, and the same applies to section 2 of the Marriage and Divorce of Mohammedans Act.
Human Rights — Freedom from Torture (Articles 24, 43, 44) — Consensual Polygamy
Consensual polygamy between adults does not inherently constitute torture or cruel, inhuman or degrading treatment under Article 24, and its continued legal recognition is not a derogation contrary to Article 43, absent evidence that polygamous marriages are characterised by such treatment.
Evidence — Admissibility of Government, UN and Academic Materials; Judicial Notice of Laws in Force
Government and UN reports are admissible under sections 64(e) and 73(a) of the Evidence Act as exceptions to the primary evidence rule and academic writings under section 87; under section 56(1)(b) the court takes judicial notice of all laws in force, including the statutes recognising polygamy.

Legislation cited (24)

  • Constitution of Uganda art.137(3)(a)
  • Constitution of Uganda art.21
  • Constitution of Uganda art.24
  • Constitution of Uganda art.29
  • Constitution of Uganda art.31
  • Constitution of Uganda art.32
  • Constitution of Uganda art.33
  • Constitution of Uganda art.37
  • Constitution of Uganda art.43
  • Constitution of Uganda art.44
  • Penal Code Act s.2(h)
  • Penal Code Act s.2(gg)
  • Penal Code Act s.153 (now 142)
  • Customary Marriage (Registration) Act s.4(2)
  • Customary Marriage (Registration) Act s.1(b)
  • Marriage and Divorce of Mohammedans Act s.2 (now 3)
  • Evidence Act s.101
  • Evidence Act s.56(1)(b)
  • Evidence Act s.64(e)
  • Evidence Act s.73(a)
  • Evidence Act s.87
  • Constitutional Court (Petitions and References) Rules 2005 r.3
  • Constitutional Court (Petitions and References) Rules 2005 r.12(1)
  • Domestic Violence Act

Cases cited (16)

  • Mifumi (U) Ltd v Attorney General (Constitutional Appeal No. 2 of 2014)
  • Mifumi (U) Ltd & 12 Others v Attorney General (Constitutional Petition No. 12 of 2007)
  • Carolyn Turyatemba & 4 Others v Attorney General (Constitutional Petition No. 15 of 2006)
  • Tinyefuza v Attorney General (Constitutional Appeal No. 1 of 1997)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • Attorney General of Tanzania v Rev. Christopher Mtikila [2010] EA 13
  • Ssemwogerere & Others v Attorney General [2004] 2 EA 276
  • David Wesley Tusingwire v Attorney General (Constitutional Appeal No. 4 of 2016)
  • Andrews v Law Society of British Columbia [1989] 1 SCR 143
  • R v Big M Drug Mart Ltd [1985] 1 SCR 295
  • Dennis v United States, 339 U.S. 162 (1950)
  • Aboneka Michael v Watoto Church (U) Ltd (Constitutional Petition No. 19 of 2018)
  • Uganda Association of Women Lawyers v Attorney General (Constitutional Petition No. 2 of 2003)
  • DCC 02-144 of December 23, 2002, Benin, Constitutional Court
  • Reynolds v United States, 98 U.S. 145 (1879)
  • Massabni v Secretary-General of the United Nations, 2012-UNAT-238
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