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Uganda: Court Declares Refund of Bride-Price Under Customary Law Unconstitutional

(Aug. 12, 2015) Eight years after it began, a legal battle challenging the constitutionality of a customary practice of refunding the bride-price at the dissolution of customary marriages ended with Uganda’s Supreme Court, the highest court of the land, declaring the practice unconstitutional. (Uganda Bride Price Refund Outlawed by Top Judges, BBC NEWS (Aug. 6, 2015).) The case was first brought before the Constitutional Court in 2007, when MIFUMI, a Uganda-based international women’s rights advocacy group, sought the abolition of the practice of paying a bride-price as a condition for contracting a valid marriage and its mandatory refund upon the dissolution of the marriage. (Mifumi (U) Ltd & 12 Others v Attorney General, Kenneth Kakuru [Mifumi v. Attorney General and Kenneth Kakuru], [2010] UGCC 2 (Mar. 26, 2010), Uganda Legal Information Institute (ULII).) In 2010, however, the Constitutional Court denied the group’s petition in a four-to-one majority, holding that both the custom of requiring payment of a bride-price when contracting a customary marriage and its refund at dissolution of the marriage were constitutional. (Id.)

MIFUMI appealed to the Supreme Court. On August 6, 2015, in a six-to-one majority decision, the Supreme Court ruled that the practice of requiring the refund of the bride-price on dissolution of customary marriages violates the country’s Constitution. (Wambi Michael, Uganda Women Hail Partial Success over “Bride Price” System, INTER PRESS SERVICE NEWS AGENCY (Aug. 7, 2015).) The Court upheld the practice of paying a bride-price as a condition for contracting a valid marriage. (Id.)

Definition

Bride-price is “a contract where material items (often cattle or other animals) or money are paid by the groom to the bride’s family in exchange for the bride, her labour and her capacity to produce children.” (Gill Hague & Ravi Thiara, Bride-Price, Poverty and Domestic Violence in Uganda (July 2009), CITE SEER X.) The amount and the kind payable vary depending on the “perceived value” of the bride-to-be. (Ngutor Sambe et al., The Effects of High Bride-Price on Marital Stability, 17:5 JOURNAL OF HUMANITIES AND SOCIAL SCIENCE 65, 66 (Nov. – Dec. 2013).) The bride-price is also related to the social status of the groom and his family, as wealthy families may be asked to pay more. (Oguli Oumo, Bride Price and Violence Against Women: The Case of Uganda 47 (Feb. 18, 2004), in Conference Report, International Conference on Bride Price, Makerere University, Kampala, Uganda (Feb. 16-18, 2004), MIFUMI website.)

Bride-price is distinct from dowry. The former is a payment usually made by the groom or his family to the family of the bride, whereas the latter is typically paid to the bride or the married couple. (Mifumi v Attorney General and Kenneth Kakuru, supra.) However, the two are not necessarily mutually exclusive in that they can be paid simultaneously as part of one marriage contract. (Id.)

Bride-price is an essential element in contracting a customary marriage in many African communities. Some of these communities include: the Kikuyu of Kenya (where it is known as ruracio), the Ashanti of Ghana (aseda), Tiv of Nigeria (kem), Baganda of Uganda (mutwalo) and the Zulus of South Africa (labola). (Ngutor Sambe et. al., supra.) For instance, among the Kikuyu of Kenya, no valid customary law marriage can be contracted without the payment of ruracio. However, the law does not require that ruracio be paid in a lump sum; payment by installment is said to be acceptable. (EUGENE COTRAN, RESTATEMENT OF AFRICAN LAW: KENYA: THE LAW OF MARRIAGE AND DIVORCE 15 (1968).)

A key feature of bride-price is that it is refundable under certain circumstances. For instance, among the Kikuyu of Kenya, ruracio is refunded in various situations, including at the time of a divorce (if the couple has no children, the husband is entitled to a full refund), at the death of a husband (if the wife decides to return to her family, the rules of divorce apply); and at death of a wife (if the wife dies before bearing children, the husband is entitled to claim half of the ruracio paid). (Id. at 15, 20, & 22.) The rites of most ethnic groups in Uganda, with the exception of the Baganda ethnic group (the largest in the country, constituting around 17% the population), seem to require the refund of bride-price upon dissolution of marriage. (Hague & Thiara, supra; Mifumi v. Attorney General and Kenneth Kakuru, supra.)

Constitutionality of Payment of Bride-Price

MIFUMI (the appellant) challenged the decision of the Constitutional Court on various grounds. One of its allegations was that the payment of bride-price as a condition for the contracting of the marriage violates the free consent clause of the Ugandan Constitution. (Mifumi v. Attorney General and Kenneth Kakuru, supra; Constitution of the Republic of Uganda, 1995, § 31(3), The State House of Uganda website.) In addition, the appellant argued that the practice of paying bride-price violates the equality and freedom from discrimination clause of Constitution. (Mifumi v. Attorney General and Kenneth Kakuru, supra; Constitution of the Republic of Uganda, 1995, § 21.) According to the appellant, this is manifest both in the fact that only one party is required to pay it and that such payment “introduces inequality in marriage and makes men treat their wives as mere possessions” and violate their rights, including in the form of physical violence. (Mifumi v. Attorney General and Kenneth Kakuru, supra.)

The Supreme Court declined to grant this petition. It admitted that inequality of men and women in marriage as well as violence against women in marriage do exist. However, the Court noted, this problem is not unique to customary marriages or to Uganda. (Id.) The Court further noted that the contribution of bride-price to the inequality of women or violence against women in marriage is overstated and that the appellant, who had the burden to prove this allegation, failed to do so. (Id.)

Unconstitutionality of Mandatory Refund of Bride-Price

The appellant contended that the Constitutional Court erred in failing to declare the mandatory refund of bride-price upon dissolution of customary marriages unconstitutional, given that the Court had found that the practice undermines the dignity of a woman in violation of constitutional provisions on equal rights in marriage and on the rights of women and that the practice leads to domestic violence. The Supreme Court agreed with the appellant on this point. (Mifumi v. Attorney General and Kenneth Kakuru, supra; Constitution of the Republic of Uganda, 1995, §§ 31(1) & 33(6).)

The Supreme Court found that the custom of refunding bride-price upon divorce ignores the contributions that the woman makes during the life of the marriage, including in the form of domestic labor and child rearing. (Id.) The Court also noted that the custom could lead to a situation where the woman would be stuck in a broken and/or abusive marriage if the refund were demanded years after the marriage and the woman’s family, after having spent the amount paid to them as bride-price, was not in a position to provide it. (Id.) In addition, the Court stated that marriage is a union between the husband and the wife, and it is wrong to make its dissolution conditional on the performance of an action (the refunding of the bride-price) by a third party (the parents of the bride). (Id.)