By Caitlin Shay
The women’s rights organization MIFUMI filed a petition at the Ugandan Constitutional Court on January 28, 2010, asking the court to outlaw polygamy. MIFUMI claims that polygamy violates equality between men and women and leads to violence, abandonment, neglect, and an increased risk of HIV and AIDS. In answer to the petition, the Attorney General filed a response, arguing that polygamy is protected under Article 37 of the Constitution of the Republic of Uganda, which protects the right to culture, tradition, and religion.
Current polygamy laws in Uganda apply to people differently because Uganda recognizes four types of marriage: customary, church and civil, Muslim, and Hindu. Section 12 of the Customary Marriages Registration Act and Section 2 of the Mohammedans Act validate polygamy. In contrast, Section 42 of the Marriage Act states that a person who knowingly enters into a marriage with someone who is already married commits an offense punishable with a maximum five-year prison sentence.
MIFUMI contends that polygamy is the most significant factor perpetuating violence against women and children. Patriarchal hierarchy in polygamous unions often creates familial unrest and fighting, which leads to violence when men attempt to dominate and control their wives. Additionally, because husbands may divide property and assets unequally, there can be intense competition between wives. For example, on February 18, 2010, one woman stabbed and killed her fellow wife in a domestic dispute over fetching water.
The Domestic Relations Bill Coalition (DRBC) is a group of over forty women’s and human rights organizations that have advocated for a uniform domestic relations law that conforms with the constitutional right to gender equality. In a 2003 report, DRBC noted that children often suffer from neglect and abandonment in polygamous families. Since each wife often has her own house and the husband rotates to each house on different days, many children do not receive regular attention from their fathers and are not able to live with them. These effects of the polygamous system violate Article 34(1) of the Constitution, which gives children the right “to know and be cared for by” their fathers, and the African Charter on the Rights and Welfare of the Child, which stipulates the child’s right to reside with her father and not to be separated from him against the child’s will.
The group also argues that polygamy contributes to the spread of HIV/AIDS, violating the constitutional protection to health. Each time a man adds a new wife to his family, all his wives are exposed to an increased risk of contracting HIV. Additionally, men sometimes inherit widows from other men or a relative who died from AIDS, making the spread of infection even more likely.
In response to allegations that polygamy violates Sections 33(4) and (6) of the Constitution, which prohibit any laws, traditions, or customs that violate women’s rights and protections that are equal to those of men, the Attorney General claims that polygamy is protected by Section 27 of the Constitution. Section 27 guarantees a person’s right to culture, and since women can freely choose what type of marriage to enter, he argues that the current legal system protects the right to culture and religion, while respecting a woman’s right to elect the type of marriage she wishes.
MIFUMI claims that the Attorney General’s position, that outlawing polygamy interferes with cultural rights, is unfounded. While culture is important, it cannot be used to oppress women or deny them equality within marriage. Additionally, polygamy violates equal protection because women cannot marry more than one man. Because polygamy does not afford equal protection and Section 33 of the Constitution says that customs that violate equal protection are illegal, the Constitutional Court should take advantage of the opportunity to clarify the nation’s laws and to declare polygamy unconstitutional.