1900720403

19/U/20403/PS

FAMILY LAW (LAW 2203)

SEMESTER II

2021/2022

LLB II

MAKERERE UNIVERSITY SCHOOL OF LAW

QUESTION ONE
“The Uganda Association of Women Lawyers (FIDA-Uganda) and 5 Others v. Attorney
General”1 was a petition that sought to undo the statutory sexism of the Divorce Act, which
gave women the onus to prove cruelty, abandonment, and adultery to successfully sue for a
divorce, where as a man only had to prove adultery to successfully sue for a divorce. The
petitioner’s argument was that several provisions of the Divorce Act were unconstitutional
because they discriminated against women, contrary to Article 33 of the Constitution, and
thus sought declarations from the Supreme Court accordingly. The petitioner’s suit was not in
vain, and the Supreme Court ruled that Sections 4, 5, 21, 22, 23, 24, and 26 of the Divorce
Act were unconstitutional, and were thus declared null and void, by the authority of Article
2(2) of the Constitution.

According to the Local Council Chairperson of Makerere Village, “The Uganda Association
of Women Lawyers (FIDA-Uganda) and 5 Others v. Attorney General” Constitutional
Petition wasted time and resources, despite achieving the declarations from the Supreme
Court that it sought. Given that the Supreme Court is the supreme judicial authority in
Uganda, the decision in that petition becomes precedent on the Supreme Court itself, and all
subordinate courts in Uganda’s jurisdiction. At face value, the statement by the Local Council
Chairperson seems bold and controversial, thus one needs to look at the aftermath of “The
Uganda Association of Women Lawyers (FIDA-Uganda) and 5 Others v. Attorney General”,
before forming an opinion on the statement of the Local Council Chairperson.

A lack of statutory amendments to cater for the developments after “The Uganda Association
of Women Lawyers (FIDA-Uganda) and 5 Others v. Attorney General” Constitutional
Petition, originally led courts to either take the view of the Constitutional Court, that all
grounds of cruelty, abandonment, and adultery are equally available to spouses seeking
divorce, or the alternative view that all provisions of Section 4 of the Divorce Act are deemed
unconstitutional. This approach at deciding divorce cases, was found to be very controversial,
ambiguous, and wanting, leading to divorce cases being decided according to the preferences
of the justices presiding over the case, instead of precedent, according to Lady Justice Eva
Kawuma Luswata in “Namukasa Joweria v. Kakonde Livingstone2.” Lady Justice Eva
Kawuma Luswata mentioned that courts analyse the evidence and facts before them in whole,

1
Constitutional Petition Number 2 of 2003
2
Divorce Cause Number 30 of 2010
to determine if the marriage has broken down beyond repair, before deciding whether to grant
the divorce, or reject it, as stated in “Gershom Masiko v. Florence Masiko3.”

Accordingly in the case of “Namukasa Joweria v.Kakonde Livingstone,” court granted the
petitioner the divorce that she sought, after finding that the marriage between the petitioner
and the respondent was broken beyond repair. The petitioner complained of extreme physical
and psychological abuse from her husband, the respondent, that occasionally led to serious
physical harm and the eventual desertion by the respondent, who abandoned the family home
in 2010 and never returned, after settling with another woman. The petitioner gave a
gruesome account of physical, social, and physiological abuse by the respondent. She
suffered battery and continuous insults, even in the presence of their children at times. The
petitioner also narrated a time she suffered a miscarriage, because the respondent hit her back
with a big stick while she was pregnant. She provided testimony of a time in December 2013,
when the respondent hired two men, namely Ramson Benjamin and Tusiime Amon to kill
her, and in 2010 June 30th the respondent attacked her with a machete, leaving her with
serious injuries, after she filed several complaints of excessive and frequent battery against
the respondent, to the Nateete Police Station. The petitioner’s testimony was corroborated by
two other witnesses, that supported her evidence.

More so, in the case of “Julius Chama v. Specioza Rwalinda Mbabazi4,” the court ruled in
favour of the cross petitioner, who successfully satisfied the court that her marriage, to the
cross-respondent was broken beyond repair. Cross-petitioner sought divorce from her
husband whom she said was adulterous – sleeping around with several women, particularly
two that were named Margaret and Victoria, the former who boosted about the marriage, and
caused the cross-petitioner to feel jealous, disrespected, furious, inferior, and heart-broken.
The cross-petitioner also cited cruelty, in the form of excessive verbal abuse, physical
violence in the form of beatings and punches, and drunk feats of rage leading to excessive
violence against the respondent, caused by the cross-respondent’s excessive drinking. The
cross-respondent had also departed the family home and abandoned his responsibilities as a
husband and a father. Additionally, this case was a petition whereby both the husband and the
wife, sought divorce from each other, with the cross-respondent citing cruelty, as the ground
which he sought divorce from the cross-petitioner.

3
Civil Appeal Number 8 of 2011
4
Divorce Cause Number 25 of 2011
Given the requirement set in “Gershom Masiko v. Florence Masiko,” the courts must agree
that the marriage is done for, to pass a judgement in favour of divorce, by either party. Thus,
if court is of the view that the marriage can be saved, then the petition for divorce fails, even
if all grounds for divorce, namely cruelty, abandonment, and adultery, have been proven by
the petitioner. The case “The Uganda Association of Women Lawyers (FIDA-Uganda) and 5
Others v. Attorney General” sought to kill two birds with one stone, ending discrimination
against women enshrined in the Divorce Act and making the process of divorce easier for
women, as it was for men, but it looks to have made the process harder than it originally was.

More so, “The Uganda Association of Women Lawyers (FIDA-Uganda) and 5 Others v.
Attorney General” unfortunately fails to address marriages outside the authority of the
Divorce Act and in so doing, the discrimination against women continues, in divorce
proceedings which the Divorce Act has no application.

In the case of “Sumaya Nabawanuka v Mugabe Ronald5” the petitioner sought a divorce
from the respondent from an Islamic marriage, in pursuit of the remedies from the Divorce
Act. The petitioner sought divorce from the Sharia Court of the Muslim Supreme Council but
was denied, and when the petitioner went to the High Court, counsel for the respondent
successfully argued that her petition was res-judicata. Counsel for the respondent further
referred to Section 18 of the Marriage and Divorce of Mohammedans Act, bars the Divorce
Act from being used in divorce proceedings of Muslim marriages. Counsel for the petitioner
argued that Section 18 of the Marriage and Divorce of Mohammedans Act, together with
Sections 14 and 33 of the Judicature Act accord the High Court authority to deliberate on
Muslim marriage proceedings, but court in response admitted that they had no authority to
apply the Divorce Act to the case. The petitioner sued for divorce, in the hope that the ruling
of “The Uganda Association of Women Lawyers (FIDA-Uganda) and 5 Others v. Attorney
General” would help her acquire a divorce from the respondent, and this is proven by the
application for Divorce Act remedies from the High Court. However, the limitations of “The
Uganda Association of Women Lawyers (FIDA-Uganda) and 5 Others v. Attorney General”
as stated earlier, make the ruling precent only in divorce proceedings, that the Divorce Act is
applicable. My assumption is that since the Divorce Act does not state the marriages it
applies to, the applicants in “The Uganda Association of Women Lawyers (FIDA-Uganda)
and 5 Others v. Attorney General,” probably thought that if they won the case, then all

5
Divorce Cause Number 39 of 2011
women in Uganda, would be afforded the same rights in dissolution of marriages as men,
however as seen in “Sumaya Nabawanuka v. Med Makumbi” such is not the case.

In conclusion, I accept that the ambiguities created by the lack of statutory amendments for
the statutory developments in “The Uganda Association of Women Lawyers (FIDA-Uganda)
and 5 Others v. Attorney General” have made the requirements to satisfy a divorce ruling
from court stricter than they were before, and the fact the statutory developments of the case
are limited to divorce proceedings the Divorce Act is applicable, mean women married
outside marriages the Divorce Act applies are not afforded the same rights as those whose
marriages are is a failure. However, it can not be ignored that in marriages the Divorce Act
applies, the women have been afforded the same rights as men, thus “The Uganda
Association of Women Lawyers (FIDA-Uganda) and 5 Others v. Attorney General” was not a
complete wastage of time and resources, as mentioned by the Local Council Chairperson of
Makerere Village.
References
Gershom Masiko v Florence Masiko, 8 (High Court of Uganda 2011).

Julius Chama v. Specioza Rwalinda Mbabazi, 25 (High Court of Uganda at Kampala Family Division

August 26, 2013).

Namukasa Joweria v. Kakondere LIvingstone , 30 (High Court of Uganda at Kampala Family Division

April 10, 2015).

Sumaya Nabawanuka v. Med Makumbi, 39 (High Court of Uganda at Kampala Family Division

February 13, 2011).

Uganda Association of Women Lawyers and 5 Others v. The Attorney General, 2 (Supreme Court of

Uganda March 10, 2004).