Do More Than Opinion Polling On the Marriage And Divorce Bill

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By Mubarak Mabuya

The process of reforming marriage and family laws and practices in Uganda has been on-going since the 19th Century. Before the advent of modern religion, natives in their diversity practiced cultural marriages. The introduction of religion and colonialism came with accompanying forms of marriage. Indeed the current Marriage Act (1904), Marriage of Africans Act (1904), Marriage and Divorce of Mohammedan Act (1906), the Hindu Marriage and Divorce Act (1961), and the Divorce Act (1904) are all products of the colonial era.

Five Clauses in the Marriage and Divorce Bill (2009) currently before Parliament have come under sharp criticism on grounds that they are foreign and elite. This point of view could only be true to the extent that the proposed reforms espouse the notion of human rights, a concept historically linked to western liberal thought. However, analysts argue that modern religions and ways of living in Uganda today are in the same vein largely adopted from elsewhere. We cannot dismiss the power of foreign influence. But whereas it is pertinent to vehemently guard against external influences that destroy native treasured social attributes, it would be an act of intellectual dishonesty to ignore acts that demean humanity on grounds of social approval no matter how native they may be.

For example there is opposition to the Bill on grounds of culture to the limitation of conjugal rights under specific circumstances that may be injurious to the health and safety of a spouse such as child birth or surgery.  It is ridiculous that one can cite culture as a term for endorsement of atrocities such as forced sex with a spouse fresh from the labour ward.   We tend to portray culture as a fixed and bounded entity when in reality we are referring to diverse and fluid entities constantly in a process of on-going argument and knowledge creation.

The need to reform colonial laws on marriage and family was raised by Christian women in the 1940’s and 1950’s under the umbrella of organizations such as the Young Women Christian Association (YWCA) and the Catholic Women’s Guild. They were concerned about the rights of widows and the status of married women. In 1956, a survey by the Uganda Council of Women covering various parts of Uganda established that many women had reservations about the payment of bride price, polygamy and property rights (particularly for widows) among others. I reckon that if a similar exercise was done with women only groups today or through a secret ballot referendum, support for the contentious clauses in the Bill would be very high even in rural areas.

In 1960, the Uganda Council of Women presented a petition to the colonial government to look into the laws relating to marriage and family. It is on the basis of this petition that the Judicial Commission of Inquiry into marriage and the status of women was appointed in 1964. The   Commission produced its report in 1965. The only concrete action taken to implement recommendations of the report was in 1973 when the Customary Marriages (Registration) Decree was passed.

Against this backdrop, it is clear that wider public consultations and opinion polling alone are not sufficient conditions for passing the Bill into law. Parliament should thoroughly examine the documented evidence from research and consultations over the past six decades on the matter of marriage and family. Critically important is the need to ensure due diligence in the protection of rights of the family as enshrined in the Constitution of the Republic of Uganda.

Mubarak Mabuya is a Researcher

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