Women and Justice: Jurisdiction

Legislation

Constitution of the Republic of Uganda (1995)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights

Article 21 of the Constitution of Republic of Uganda prohibits gender discrimination generally and enshrines the principle of equality before the law. It states that “[a]ll persons are equal before and under the law in all spheres of political, economic, social and cultural life”; that they “shall enjoy equal protection of the law”; and that 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 or disability.”
In Article 31, the Constitution sets the minimum age for marriage at 18 and specifies that “men and women are entitled to equal rights in marriage, during marriage and at its dissolution.” Article 33 pertains specifically to the rights of women and provides that “The State shall provide the facilities and opportunities necessary to enhance the welfare of women to enable them to realise their full potential and advancement”; that “Women shall have the right to equal treatment with men and that right shall include equal opportunities in political, economic and social activities”; and that “Laws, cultures, customs or traditions which are against the dignity, welfare or interest of women or which undermine their status, are prohibited by this Constitution.”



Domestic Case Law

Babumba v. Kizito High Court of Uganda (1992)

Property and inheritance rights

Here, the Court held that “having a child or children by the deceased is not enough to confer on the woman widowhood.” Consequently, the claimant was unable to inherit property from her deceased partner.



Negulu v. Serugga High Court of Uganda (2013)

Divorce and dissolution of marriage

Here, the Court held that failure to register a customary marriage did not necessarily invalidate it and that one can be considered customarily married as soon as the customary ceremonies of a tribe have been performed.



Kagwa v. Muteteri High Court of Uganda (Family Division) (2005)

Divorce and dissolution of marriage, Property and inheritance rights

Here, the Court held that the termination of a marriage should lead to the division of matrimonial property between the two spouses. This rule applies when both spouses have contributed, financially or otherwise, toward the acquisition of the property. In this case, even though the marriage between the two partners was declared void, the Court held that the two matrimonial properties should be divided between the partners. The Court also held that custody arrangements should not excessively restrict the access of one parent to the child.



The Center for Health, Human Rights and Development (CEHURD) v. Mulago National Referral Hospital High Court of Uganda (2013)

Abortion and reproductive health rights, International law

Here, Justice Lydia Mugambe held that Mulago National Referral Hospital’s negligence and the resulting disappearance of the couple’s baby amounted to psychological torture for the parents and violated their rights to health and access to information. Specifically, Justice Mugambe held that a woman’s inability to access sufficient antenatal care demonstrates a failure on the part of the State to fulfill its obligations under the right to health. The decision outlines Uganda’s obligations under international law to devote special attention and resources to women whose circumstances make them vulnerable.



Uganda v. Hamidu and Others High Court of Uganda (2004)

Domestic and intimate partner violence, Forced and early marriage, Gender discrimination, Sexual violence and rape

Here, the Court rejected defendant’s argument that his mistaken belief that the complainant was his wife was a sufficient defense against a conviction of rape. The Court, relying on Article 31 of the Constitution, stated that both husband and wife enjoy equal rights in marriage and stated that the complainant’s dignity was trampled upon. The Court thus extends access to justice by construing the existing law on rape through the reasoning that the constitutional provisions on equality in marriage and the recognition of the equal dignity of women and men had effectively amended Sections 9 and 123 of the Penal Code. These sections at face exclude husbands from being held criminally liable for marital rape.



Mukasa and Oyo v. Attorney General High Court of Uganda (2008)

LGBTIQ

Here, the Court held that government officials violated the constitutional rights of the plaintiff by illegally raiding plaintiff’s home without a search warrant, seizing plaintiff’s documents related to her work as an advocate for the human rights of LGBTQ persons, and illegally arresting a guest present at plaintiff’s home during the raid. Later, at the police station, plaintiff’s guest was forcibly undressed and fondled to “determine” her sex. The Court held that plaintiff and plaintiff’s guest were treated in an inhuman and degrading manner amounting to sexual harassment and indecent assault.



Tumwesigye Kasim v. Uganda Court of Appeals of Uganda (2009)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

This appeal was limited to sentencing only. Appellant was convicted of defilement of a six-year-old girl and was sentenced to 14 years imprisonment. Appellant was a teacher at the victim’s school. The school held a special program for students during school holidays. During this program, appellant took the victim into his office at school and had sexual intercourse with her. Despite his warning not to tell anyone, the victim told her brother, who told her parents. A medical examiner confirmed that she had been defiled. On appeal, appellant argued that the sentence of 14 years was too harsh. In support, he argued that he was the sole breadwinner for 11 dependents, including two lame dependents and four orphans. Appellant also argued that since the victim was a very young child, she had already gotten over the trauma of the defilement. The court upheld the sentence and ruled against appellant. The court found that, as a teacher, he had a duty to protect the victim, but instead chose to ravish her, disgracing himself, his profession, and society.



Julius Rwabinumi v. Hope Bahimbisomwe Court of Appeals of Uganda (2008)

Divorce and dissolution of marriage

A husband appealed from a divorce proceeding ordering that the divorcing parties share various properties accumulated during the marriage (Ground No. 4). He contended that his wife (the respondent) had no right to such property because she did not produce evidence to prove her contribution to the acquisition of such property. The issues are whether there is an established legal formula for division of property after divorce, and whether spousal contribution plays a role in such division. After reviewing the traditional approach accounting for spousal contribution, the court found that the enactment of the 1995 Constitution drastically changed the wife’s legal position and rights after divorce. Specifically, Article 31(1) provides equal rights to husband and wife during marriage and dissolution. Thus, the court found that marital property jointly belonged to the husband and wife, and thus contribution to the property is irrelevant. Notwithstanding the parties’ right to freely contract prior to a marriage agreement, the court found that, upon dissolution, matrimonial property ought to be divided equally and shared “to the extent possible and practicable”.



Mushabe Abdul v. Uganda Court of Appeals of Uganda (2007)

Sexual violence and rape, Statutory rape or defilement

Appellant was convicted of defilement of a four-year-old girl. The victim was sent to a well to fetch water for her family. On the victim’s way to the well, appellant grabbed the victim, threw her to the ground, and forcibly had sexual intercourse with her. He then fled but was later arrested. At trial, appellant denied the charges and claimed that the victim’s father had framed him. The trial court rejected his claim and sentenced him to 14 years imprisonment. On appeal, appellant requested a sentence reduction from 14 years to eight years. The court of appeals dismissed the appeal, holding that the 14-year sentence was not inappropriate or excessive, and that, in light of the circumstances, there was no reason to reduce the sentence.



Sekandi Hassan v. Uganda Supreme Court of Uganda (2007)

Acid violence, Domestic and intimate partner violence

Appellant was convicted of murder and sentenced to death. The deceased, a 16-year-old girl, lived with her mother and brother. For approximately a year, the deceased would sneak out and have sexual intercourse with appellant, a married man who lived approximately 200 meters away from the deceased. A week before the incident, the deceased told her mother that appellant had impregnated her. This greatly displeased her mother, and she reported this to LCs officials. On the night of the incident, the deceased’s mother noticed appellant at her residence before appellant and the deceased left for the night. The next morning, the deceased was found lying by the side of the road about one mile from her home. She was in critical condition and had severe acid burns. Unable to speak, she wrote her information on a piece of paper, including her name and the name of the person who brought her to her location (appellant). She died later that day, and a medical examiner found the cause of death to be severe burns and pulmonary edema. Appellant was later arrested and convicted. He appealed the conviction, arguing that the conviction rested on weak circumstantial evidence and that his alibi deserved re-evaluation. On appeal, the Supreme Court ruled against appellant. They found that the case against appellant relied on the credibility of the deceased’s mother and brother, who, due to proximity and prior acquaintance, knew appellant very well. The court also found that the fact that the deceased’s mother was pursuing actions against appellant gave him a motive for the murder, so as to avoid a possible defilement charge. In sum, the court held that there was ample evidence to convict appellant over his alibi and hence dismissed the appeal.



Sgt. Canbera Dickson v. Uganda Court of Appeals of Uganda (2010)

Sexual violence and rape

This is an appeal challenging a rape conviction and sentencing of 15 years imprisonment. Appellant, an army sergeant, went to a village and used a gun to murder his maternal uncle. On the same day, he led his victim, a widow of appellant’s late brother, to an abandoned house and raped her at gunpoint. Three days later, the victim reported the incident and was medically examined. Because she recently had a baby, the medical examiner was unable to find any physical damage to her body. Appellant appeals on two main grounds: (1) without medical proof of penetration, the victim’s accusation requires corroboration to stand; (2) the sentence of 15 years was excessive. On appeal, the court accepted the prosecution’s argument that, because the victim was a new mother and was being held at gunpoint, it was very unlikely that she would have been physically damaged from the penetration or struggle. The court also followed prior precedent that held that, in certain criminal cases, corroboration was not necessary for a conviction. Concerning sentencing, the court also agreed with the prosecution. The court found that appellant had been given a gun by the military to protect the people of Uganda, but instead appellant used that gun to terrorize and rape the victim. Because of those circumstances, the court refused to be lenient, but rather increased appellant’s sentence to 25 years.



Mugasa Joseph v. Uganda Court of Appeal of Uganda (2010)

Sexual harassment, Sexual violence and rape, Statutory rape or defilement

This appeal was limited to sentencing only. Appellant was convicted of defilement of a baby girl and was sentenced to 17 years imprisonment. Appellant was a relative of the child and was known as a teacher of Christianity. Appellant requested a more lenient sentence of 10 years. The Court of Appeals ruled against Appellant and increased his sentence to 25 years, citing the policy consideration that, despite the fact that defilement can be punishable by death, individuals still continue to defile babies. Thus, the court used this case as an opportunity to send a message to society that “violating the rights of child females must stop.”



Law & Advocacy for women in Uganda v. Attorney General Constitutional Court of Uganda (2010)

Female genital mutilation or female genital cutting, Harmful traditional practices

Petitioners challenged the tribal practice of female genital mutilation and argued that it is inconsistent with the Ugandan Constitution. They argued that the practice is cruel, inhuman, and degrading, and endangers the right to life and privacy under the Constitution. The two issues before the court were whether the petition raised any matter for constitutional interpretation and whether the practice of female genital mutilation should be declared as null and void under the constitution. At trial, petitioners produced unchallenged affidavits supporting the fact that female genital mutilation was practiced crudely, wantonly, and without anesthesia, causing permanent damage and trauma to the victim, including incontinence, paralysis, and even death. The court first held that the petition did raise serious questions for constitutional interpretation. Second, the court held that, while the Constitution protects free exercise of cultural or religious custom, such exercise must not infringe on human dignity or the right to be free from cruel, inhuman, or degrading treatment. Thus, the court held that female genital mutilation was inconsistent with the provisions of the Constitution, and thus declared the custom void.



Sabwe Abdu v. Uganda Supreme Court of Uganda (2010)

Sexual violence and rape, Statutory rape or defilement

Appellant was convicted of defilement of a girl less than 18 years old and was sentenced to 12 years imprisonment. Trial testimony established that while the 13-year-old girl and her younger sister were fetching water at a well, appellant, disguised as a ghost, ordered the two to remove their dresses, blindfolded them, and led them through a swamp to some bush where he had sexual intercourse with the older sister. He then left the sisters in the bush overnight, and the sisters’ father was unable to find them. Appellant then went to the father’s house and told him that he could use his witchcraft powers to find the sisters if the father paid him two goats and two chickens. Upon payment, appellant went back to the brush and brought the sisters to his home, claiming that they needed treatment. While at Appellant’s home, the older sister told her father that appellant had raped her. At trial, the court rejected appellant’s defense that a ghost had abducted the sisters and he was merely using his witchcraft powers to help find the girls. Instead, the court relied on the sisters’ testimony, who claimed that they recognized appellant’s voice. The Supreme Court upheld the conviction and sentence. First, the court found that appellant lived only a quarter mile away from the sisters and used to come to their home and speak to their father, thus supporting the assertion that the sisters were able to identify appellant through voice recognition. Second, the court found that appellant’s witchcraft defense could not be reasonably believed and that the fact that he immediately located the sisters upon payment supported the inference that he was the one who brought them there.



Uganda Association of Women Lawyers and 5 Others v. The Attorney General Constitutional Court of Uganda (2004)

Divorce and dissolution of marriage, Gender discrimination

The petitioners sued to have several provisions of the Divorce Act declared void on the grounds that they discriminated on the basis of sex.  The Court held that sections 4, 5, 21, 22, 23, 24 and 26 of the Divorce Act are void in so far as they discriminate on the basis of gender, so the grounds for divorce as listed are available to both sexes and the compensation for adultery, costs against a co-respondent, alimony, and settlement are applicable to both sexes.