RIGHTS OF WOMEN AND CHILDREN (AND OTHER MARGINALISED GROUPS-

DISABLED PERSONS, MINORITIES ETC)

The right of women is traced from Article 211 which provides equality and freedom from
discrimination based on social standing including gender. Until the 1995 Constitution of Uganda
as amended, women were the subjects of gross human rights violation under the guise of culture,
customs and traditions and the law did not provide any protection meaningfully given to them.
Therefore, the 1995 Constitution of Uganda, provides for the following rights of women;

RIGHT TO A FAMILY, (ARTICLE 31)

The right of a family is actually a rubric within the context of the family, from the moment of
entering into a marital agreement until its dissolution by divorce and death of one spouse. Article
312 can be described guiding principles on rights of parties that should guide formulation of
domestic relations law, the rights are recognized in the context consent of marriage, right to
found a family, equal rights and during dissolution of marriage3respectively.

Consent to marriage4, provides that marriage shall be entered into with the free consent of the
man and woman intending to marry. This was never the case in the precolonial era whereby
some customs like the Nakku custom among the Baganda and selection of a 14-year-old virgin
girl to the cultural position of run up to the wedding of the Kabaka among others violated the
right to free consent to marriage.

In the case of James Opaja and Anor v Mariam Adekur Constitutional Petition No.1\ 1997,
in this case, the widow Mariam Adekur was supposed to be inherited by the first appellant who
was a brother to the late husband. The Constitutional Court held that the custom in pallisa
allowing widow inheritance, went against the spirit of the Constitution.

AFFIRMATIVE ACTION IN FAVOUR OF MARGINALZED GROUPS. (ARTICLE 32,

ARTICLE 33)

1
1995 Constitution of Uganda as amended
2
1995 Constitution of Uganda as amended
3
Article 31(1) (a), (b) and (3) of the 1995 Constitution of Uganda as amended.
4
Article 31(3) of the 1995 Constitution of Uganda as amended.
These articles explicitly prohibit discrimination against and provides for affirmation action
programmes in favour of groups marginalized on the basis of gender, age, disability or any other
reason created by history, tradition or custom for the purpose of embracing the imbalances which
exist against them. The gains of affirmative action are seen in terms of legislation, policies and
programmes in the empowerment of women in the political, economic and social activities. 5

In this respect, affirmative action is reflected in the provision for special interest seats in the
national parliament in respect of women representative in each district this is witnessed today
where women are being appointed to high positions of leadership for example the current Vice
President Hon. Jesca Alupo, the prime minister, Hon. Robina Nabbanja, and the IGG Hon. Betty
Kamya to mention but a few.

RIGHTS OF WOMEN TO PROPERTY. (ARTICLE 26)

More often man not a woman has been treated like property whose identity is linked to her
husband.
In Uganda Vs. Jenina Kyanda6, court held that the English married women property Act 1882
which allowed women to own property in their own right is applicable to Uganda. In this regard,
the women were free to purchase and own property. Article 26 7emphasizes the right to own
property and this right applies to every person. Unfortunately, in practice very few women own
property.
LAND RIGHTS OF WOMEN.
In traditional Uganda, women had no right to own land, there was a tendency to prohibit women
from owning any factor of production like land.
Traditionally in Uganda land belonged to the husband and it did not devolve upon the wife on his
death. Instead it would naturally pass on to the customary heir of the husband living the wife
with only the right to use which terminates when she re-marries. This was worsened by the
English land law principle “whatever is attached to the land becomes part of it” in the sense that
the woman’s developments on the land would pass with it to the customary heir leaving her with
nothing.

5
Article 33(4) of the 1995 Constitution as amended.
6
(1977) HCB 111
7
1995 Constitution of Uganda as amended.
Women of today are saved from the consequences of the above tradition by Article 2(2) of the
1995 constitution as amended which renders inconsistent customs and traditions that contradict
with the spirit of the constitution.
Furthermore, section 30 Land Act provides that any traditions denying women, children and the
disabled rights to own land are void.
It should be noted that there are at times injustices in laws dealing with the division of land in
situations where the woman has contributed to the land. Nevertheless, courts have at times
employed the principles of equity in order to save the rights of women.
Best Kemigisha v Komuntale and Anor, 8 the plaintiff was the wife of the late King of Toro
who died intestate in 1995. Her right to inherit her husband’s estate was banned and challenged
by her sister in law. the Justice held that as a general matter, a widow is entitled to apply to court
to guarantee letters of administration to administer their estate of her husband for the benefit of
their children and herself and under law she has first priority especially when the children are
minors.
RIGHTS OF CHILDREN.
Article 257(C)9 and section 210 define a child to mean below the age of eighteen years. However,
Article 34(5) of the 1995 Constitution of Uganda as amended lowers the age of a child to sixteen
for purposes of employment.
Rights of a child are provided for under Article 3411 and section 412 which provide that every
child shall have the right to live with his or her parent or guardian and so on.
RIGHTS OF MINORITIES. (ARTICLE 36)
This article provides that minorities have the right to participate in decision making process, and
their views and interest shall be taken into account in the making of national plans and
programmes.13
RIGHTS OF PERSONS WITH DISABILITY. (ARTICLE 35).

8
Civil Suit No. 5\ 1998
9
The 1995 Constitution of Uganda as amended
10
The Children Act, Cap. 59 as amended
11
The 1995 Constitution of Uganda as amended
12
The Children Act, Cap. 59
13
Article 36 of the 1995 Constitution of Uganda as amended.
Persons with disabilities have a right to respect and have dignity, and the state and society shall
take appropriate measures to ensure that they realize their full mental and physical potential. 14
RIGHT TO GENDER EQAULITY (AND FREEDOM FROM DISCRIMINATION ON
GROUNDS OF SEX, ETC).
Gender refers to the social attributes and opportunities associated with being male and female
and the relationships between women and men, girls and boys as well as the relations between
those women and men.
The 1995 Ugandan Constitution as amended forbids sex discrimination and guarantees equal
rights and opportunities to everyone, regardless of gender. The affirmative action clause in
Uganda's constitution is one illustration of how the country's leadership works to advance gender
equality. Affirmative action is allowed under Uganda's Constitution under Article 32(4) for
women and other groups who are disadvantaged or underrepresented in the political, social,
economic, or other aspects of life15. The government is required by this clause to take steps to
increase the representation of women in positions of power, including the legislature, local
governments, and other public posts as per article 32(1) of the Constitution which mandates that
at least 30% of women must be represented in parliament. The Constitution of Uganda further
guarantees the protection of human rights of all Ugandans, including human rights defenders.
The 1995 Constitution lists the marital age as 18 and above which is opposed to customary laws
that permitted child marriage, polygamy and other harmful practices.

In 2022, the Succession Act was amended to give men and women the same inheritance rights.
The Labour Act was enacted to ensure that women were not segregated at their places of work.
This meant equal pay for equal work and non-discrimination on gender basis during
appointments and promotions Male and female children now have an equal right to a portion of
their parents' assets, according to the law.

The Local Governments (Amendment) Act 2019 in an attempt to achieve gender equality and
equity in the provision of services and resource distribution, calls for the creation of a gender and
equity committee in each local government council.

14
Article 35(1) of the 1995 of the Constitution of Uganda as amended.
15
Article 180(2)(b) of the 1995 Constitution of Uganda as amended.
The right to equality and freedom from discrimination can be seen as the bedrock of all other
right and freedoms thus an individual cannot be discriminated on grounds of religious belief
(Article 21)16 or gender. The essence of the right to equality is that individuals should be treated
in the same manner irrespective of their peculiar characteristics or situation. Freedom from
discrimination pertains to according different treatment to different persons in light of those
characteristics or situation. The grounds for discrimination include, gender(sex), disability, race,
ethnicity, colour, social status, political opinion and so on. Article 21(4)17 for affirmative action
(positive) over discrimination in favour of persons that have been marginalized by history,
tradition among many others.
Gender equality requires equal enjoyment by women and men of socially valued goods,
opportunities, resources and rewards. Gender equality does not mean that women and men
become the same, it means that their opportunities and life chances are equal.
In 1998, Uganda enacted a Land Act pursuant to Article 237(9) of the 1995 Constitution of
Uganda as amended, which required parliament to have a Land Act in place by July of that year.
The purpose of the Land Act is to provide a system for the tenure, ownership and management of
land and to improve the delivery of land services to the population by decentralizing land
administration.
During that period leading up to the passing of the Land Act, women’s rights activists lobbied
Parliament for the inclusion of women friendly provisions in the Act. The impetus to raise
women’s concerns arose in part from the Constitution itself, which is a progressive and gender
sensitive document that recognizes women’s rights generally and the rights of all Ugandan
citizens to land ownership.
Section 27 of the Land Act Cap.227 as amended prohibits decisions that affect customary land
that deny the rights of women, children and persons with a disability regarding to ownership,
occupation or use of any use of customary land as well as decisions that impose conditions
violating constitutional provisions protecting women.

Best Kemigisha v Komuntale and Anor, 18 the plaintiff was the wife of the late King of Toro
who died intestate in 1995. Her right to inherit her husband’s estate was banned and challenged
16
The 1995 Constitution of Uganda as amended.
17
The 1995 Constitution of Uganda as amended.
18
Civil Suit No. 5\ 1998
by her sister in law. the Justice held that as a general matter, a widow is entitled to apply to court
to guarantee letters of administration to administer their estate of her husband for the benefit of
their children and herself and under law she has first priority especially when the children are
minors.
Also in the case of Law and Advocacy for women in Uganda v AG19, the provision governing
the distribution scheme and many other discriminatory provisions of the Succession Act were
struck down and declared unconstitutional.
The court noted that the allocation of the 15% to the surviving wife or wives interested in
succession effectively discriminated against women. The law oblivious to the contribution of
wives to the acquisition of matrimonial property. However, the court merely stopped at declaring
the law unconstitutional. It did not go ahead to suggest any remedy. Consequently, each judicial
officer has been left to use common sense in the adjudication of such matters.
Section 39 of the Land Act Cap. 227 as amended provides that for a family land to be
transferred, there has to be consent by spouses.

Furthermore, Article 2120 provides for equality and freedom from discrimination.

In the case of Uganda Association of Women Lawyers and 5 others v AG21, where the
petitioner sued to have provisions of Divorce Act declared void on grounds that they are
discriminated on basis of sex.

The court held sections 4,5, 21, 22, 23, and 24 of the Divorce Act are void in so far they
discriminated on the basis of gender.

Inheritance and owning of property.

Much as the Constitution guarantees the above the rights under Articles 21 and 2622, their
applicability is still in doubt under certain circumstances. Scenarios are seen in Buganda where
the elders tend to discriminate basing on sex for example the Late Apollo Nsibambi´s daughter

19
[2007] UGSC 71
20
The 1995 Constitution of Uganda as amended.
21
Constitutional Petition No. 2 of 2003.
22
The 1995 Constitution of Uganda as amended.
who had been chose by the deceased to become his heiress, the cultural leaders from Buganda
were totally against it simply because she is a woman and this is against Buganda culture.