Marriage was defined in the case of Hyde V Hyde who knows who was sworn to uphold

homes but whenand rules or by visiting as the voluntary union for life of one man and one
woman to the exclusion of all others1.

However, this definition is highly criticized because it basically looks at civil and church
marriages. This is because when you look at customary and Islamic it is legally possible to have
polygamous marriage which is enforced by the law and the definition emphasizes one man and
one woman.

Further still the definition emphasizes voluntary union for life yet Article 31(1) b of the
constitution provides for the equal rights in the dissolution of marriage2 and also section 4 of the
Divorce Act provides for the grounds of divorce3 which means marriage can be dissolved and
hence challenging the provision of union for life.

Therefore, in simple terms marriage can be defined as an agreement between man and woman
which agreement creates a mutual relationship between them and equal rights.

A custom was defined in the case of Bruno kiwuwa V Ivan sserunkuma and Juliet Namazi as
a practice which has been practiced in a particular area for a long period of time and it has been
accepted by the people as part of the law of that particular area4.

Customary marriage was defined by section 1(b) of the customary marriage registration Act as a
marriage celebrated according to the rights of an African community and one of parties is a
member to that community5.

However, it should be noted that there is no general law in Uganda, therefore determining what a
marriage is under customary law is whether the union is treated as a marriage by the law or
customs of the nation, race or sect to which the parties as it was held in the case of Uganda V
Peter Kato and 3 Ors6.
1
Hyde v Hyde (1866) L.R.I.P and D. 130
2
1995 constitution of Uganda article 31(1) b.
3
Divorce Act Cap 249 section 4.
4
Bruno Kiwuwa V Ivan Serunkuma and Juliet Namazi (2014) C.A 2
5
Customary Marriage Registration Act Cap 248 section 1(b).
6
Uganda V Peter Kato and others (1975) HCB 204
Further still the custom or customary law governing customary marriage should not be contrary
to natural justice, equity and good conscience and any written law as it is provided in the
constitution7.

Bride price was defined in the case of Mifumi and 12 others V AG and Anor as a sum of
money, property, or other form of wealth given by a groom or his family of a woman he will be
married to or just to marry as a sign of appreciation8.

Per the nature of customary marriages in different communities, bride price is the conditional
precedent of customary marriage and for a customary marriage to be valid there must be
payment of bride price therefore it is right to assert that bride price is constitutional.

The constitution under Article 37 provides for a right to culture and similar rights9. This means
that if a person is to practice and promote his culture through customary marriage, the
conditional precedent for a valid customary marriage is bride price. This was illustrated in the
case of Aggrey Owori V Rosette Tagire, where the learned judge held that no customary
marriage is valid if bride price is not paid10. This therefore means that the practice of paying
bride price for example “enjugano” under the kinyankore customary marriages is constitutional
because it is provided by the constitution.

Furthermore, article 31 of the constitution provides for the rights of a family. Article 31(3)
provides that marriages shall be entered into with the free consent of the man and woman
intending to marry11. It has to be noted that law permits and recognizes various types of
marriages which are a reasonable alternative to customary marriage. In as far as parties which
consented to marry are adults who choose to get married under customary marriage full knowing
that the conditional precedent of such type of marriage is bride price and in order to make their
marriage valid, they must pay bride price which makes bride price constitutional.

However, in my view, to a smaller extent it is right to assert that it is unconstitutional top pay
bride price as a conditional precedent of customary marriages.

7
1995 constitution of Uganda article 2.
8
Mifumi and 12 others V AG and another {2010} UGSC 2.
9
1995 Constitution of Uganda article 37
10
Aggrey Owori V Rosette Tagire. HCCS No. 178/2000.
11
1995 constitution of Uganda article 31(3).
Firstly, the demand of bride price by parents of the bride from their son in law to be as a
conditional precedent for a valid customary marriage contradicts with Article 31(3) of the
constitution which gives mandate to female and male of age of majority to enter marriage freely.
So, the act of denying them to marry each other because of failure to pay bride price is a clear
violation of the constitutional right provided for in the constitution12 which renders bride price to
be unconstitutional.

The practice of refund of bride price during the dissolution of customary marriage contradicts
with Article 31(1) b which provides for equal rights during marriage and its
dissolution13.therefore the refund of bride of bride price violates constitutional rights of a woman
during the dissolution of marriage because it puts on her a burden to refund the bride price and
for this fact the woman may stay in a marriage she no longer wants and hence rendering pride
price unconstitutional.

Additionally on the above, the refund of bride price is a clear failure to recognize and honor the
wife’s unique and valuable contribution to the marriage. It has to be noted that a woman’s
contributions in a marriage cannot be equated to any sum of money or property and any refund
violates a woman’s constitutional right to be an equal co-partner to the man14. This was further
illustrated in the case of Mifumi (U) Ltd & 12 others V AG & Anor, in this case the court held
that the practice of the refund of bride price was unconstitutional15. This therefore implies that
bride price is unconstitutional.

Furthermore, bride price violates the constitutional right to one’s human dignity, Article 24 of
the constitution provides for respect of human dignity and protection from inhuman treatment16.
This means that the demand of bride price as a conditional precedent for customary marriage,
amount to the buying and selling of a bride as an item for sale in a market and such haggling and
pricing of young girls and woman like commodities is an affront to human dignity. This was
illustrated in the early case of R V Amkeyo17, where the judge regarded the African custom of
buying a wife as buying a chattel and therefore it undermined a woman’s dignity. This therefore
12
1995 constitution of Uganda article 31(3).
13
1995 constitution of Uganda article 31(1) b
14
1995 constitution of Uganda article 31(1) b
15
Mifumi (U) Ltd & 12 others V AG & Another {2010} UGSC 2
16
1995 constitution of Uganda article 24
17
R V Amkeyo (1917) E.A.L.R 11
clearly indicates that the payment of bride price as a conditional precedent for customary
marriage is unconstitutional.

The practice of bride price leads to conditions of inequality between a man and a woman which
contradicts Article 21 of the constitution which provides for equality and freedom from
discrimination18. The buying of a girl undermines a woman’s dignity to just a mere chattel and
because of this a man may treat a woman as his property subjecting her to cruelty as he thinks
she is his because he paid for her yet the constitution provides for equality and therefore the
practice of bride price being unconstitutional.

The practice of paying bride price may deny people their constitutional right of marrying who
they want. The right is provided for under Article 31(3) of the constitution which provides that
marriage shall be entered into with the free consent of a man and a woman intending to marry19.
This means that the demanding of high bride price by the third party which is the parents of the
woman may deny a chance to marry whom you want as prescribed by the law. for example, the
marriage custom of the Karamojong demand over 100 cows in order to marry their girl which is
too much, this violates one’s constitutional right of marrying whom you want and therefore
rendering bride price unconstitutional.

The practice of paying bride price at sometimes leads to early and forced marriages. This is
because greedy parents may out their daughters out of school in order to get them married so that
they receive bride, in this regard these parents violate the constitutional right to education which
is provided for under Article 30 of the constitution20and hence making bride price
unconstitutional.

Conclusively, after analyzing the nature of bride price in different Ugandan communities, it is
right to assert that bride price is constitutional; however, in my view bride price is to a smaller
extent unconstitutional because it leads to a number of social ills which are prohibited by the
constitution.

18
1995 constitution of Uganda article 21.
19
1995 constitution of Uganda article 31(3)
20
1995 constitution of Uganda article 30
 NKUMBA UNIVERSITY

Student Number: 2100100644

Index Number: 2021/AUG/LLB/B228762/DAY

Course unit: FAMILY LAW 1

Lecturer’s Name: COUNSEL ADAM KIRUMIRA

Question: DISCUSS THE CONSTITUTIONALITY OF BRIDE PRICE IN CUSTOMARY

MARRIAGES.
BIBLIOGRAPHY

STATUTES

1995 Constitution of Uganda (as amended)

The Customary Marriage (Registration) Act Cap 248

Divorce Act Cap 249

CASE LAW

Mifumi (U) Ltd & 12 Ors V AG & Anor {2010} UGSC 2

Hyde v Hyde (1866) L.R.I.P and D.130

Uganda V Peter Kato and Ors (1975) HCB 204