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Matrimonial and family law

Harmful tradition

by Atuki Turner
Uganda, like most African countries, is an example of legal pluralism. Common law, statutory law, religious and customary law all coexist. Most women are subject to customary law, a main principle of which is the subordination of women. This is most apparent in marriage and fuelled by practices like the bride price. Tra­ditionalists speak of cherished customs that should not be interfered with, while progressive organisations are struggling for reform. [ By Atuki Turner ]

A bride price is the conditional exchange of property, usually cows or money, from the groom to the parents of the bride in return for marriage. It relegates the woman to the status of property and supports the notion that a man has purchased his wife’s reproductive and productive capacity as well as – most importantly – her obedience.

The payment of a price thus gives the man the mandate to use violence against his wife to make her obey. Moreover, the bride price must be refunded if a man decides to divorce her; this practice hangs like a threat over her head and that of her parents, ensuring the wifes’ compliance.

An issue of human dignity

Art. 21(1) of the Constitution of Uganda provides that all persons are equal before and under the law. The demand for bride prices obviously does not agree with this principle, portraying the woman as a commodity for sale and thus breaching Art. 24. of the Constitution, which guarantees that every person shall be treated with dignity.

In spite of this depressing truth, many still defend the bride-price practice as a cherished custom that should not be interfered with or destroyed. Because they are seen as the man’s or clans’ property, women cannot own any property or land, nor do they have any right to their children upon separation.

As a widow, a woman becomes subject to the practice of widow inheritance by her male relatives. In ­other words: she becomes another man’s wife. If she resists, she is harassed and her home, children and property are taken away from her. Customary marriage allows polygamy which fuels violence against women and child abuse.

There has been awareness of the destructive consequences of this tradition for a long time. As far back as 1965, a Commission on the Status of Women re­commended abolishing bride price (The Kalema Report, 1965).

MIFUMI – a non-governmental organisation – began its campaign against the bride-price tradition in Uganda in 2000, one year after having pioneered a project to protect women from domestic violence through legal representation and practical assistance. These activities showed that women’s rights – understood as human rights – were being denied. Close contact with women affected and further research made clear that the bride-price custom plays a major role in domestic violence.

In December 2001, MIFUMI held a referendum in Tororo in eastern Uganda on the question of whether this practice should be reformed and its oppressive elements removed. Sixty percent voted for reform. Last year, the district government indeed used its local mandate to pass the Tororo Bridal Gifts Ordinance which prohibits the demand and refund of bride prices.

This was done through a democratic process involving political and cultural leaders. Although the process was highly controversial, it is encouraging that reason prevailed. In this as in many other cases, however, the promotion of women’s rights depended heavily on the good conscience of individuals in positions of authority.

At the national level, MIFUMI is campaigning to have the bride-price practice modified or abolished. The message is slowly getting across, however, and people are beginning to understand the ways in which the bride price has a negative impact on the status of women. Men had to be taken on board to spread the message before it was taken as worthy of serious consideration.

Cultural limits

For women, it is very hard to appeal against traditional justice, although the right to appeal is a recognised principle in law. A core problem is that customary law is unwritten, so there are no mechanisms for reforming it. Judgement and sentencing is left to so-called cultural leaders, who are often selected from the most traditional people. In a similar vein, the Catholic Church tends to choose its Popes from among the most traditional and dogmatic clergy.

Cultural reform of women’s rights under the auspices of cultural leaders is therefore likely to be trivialised. This is all the more so as, in customary law, there is no such thing as a forum of appeal. Yet another problem is that tradition subordinates the indivi­dual to the clan. All summed up, a woman’s right to self-determination and personal development is eclipsed by cultural expectations.

Culture thus limits women’s ability to make the most of their lives. For example, once the bride price is paid, the husband may forbid his wife to work, or he may grab her earnings. Most importantly, he can restrict her movements. He can divorce her anytime he wishes, and marry as many women as he likes. In this setting, women are at risk of contracting HIV, because they are completely subjugated through violence and the threat of violence.

The Ugandan government has been quite progressive in relation to women’s development, but this has mainly been expressed in affirmative action in education and politics. There is no reason why action should not extend to women’s rights too. Governments have a duty under international law to protect women against harmful cultural practices. Uganda has signed international human-rights instruments that place the country under the obligation to fulfil this duty (see box). The Ugandan government has not lived up to it.

Nonetheless, legal action can be useful. In Uganda, challenges have been successfully brought by women’s groups against discriminatory divorce laws and female genital mutilation. Some time back, MIFUMI filed a constitutional petition seeking a declaration on the bride-price practice. This is the first legal challenge to the bride-price practice in Africa. The hearing took place in September 2008 and the judgement is still awaited.

Governments must draft policies to counteract harmful cultures. They have the means to make and enforce rules. Using those means is, of course, par­ticularly urgent in legal terms where constitutional provisions demand that women’s rights be protected.

Mixed messages

Governments usually avoid interfering with cultural or religious issues. State authorities in Africa tend to send mixed messages in these matters, stressing codified law on the one hand, whilst celebrating tradition on the other. Any sanctions governments oppose thus tend to be counteracted by their own rhetoric.

Government leaders will, for instance, speak out against child marriages and the spread of HIV/AIDS, but the government will not pass any legislation to protect women or ensure their rights during marriage. In the case of HIV/AIDS, Uganda’s government is still promoting policies such as abstinence, faithfulness and the use of condoms, while ignoring the fact that women are subjugated under customary law and cannot insist on safe sex in a violent or polygamous relationship.

Some constitutions, moreover, are themselves contradiction-ridden. For instance, Uganda’s Constitution (Art 32 (2)) prohibits laws, cultures, customs and traditions which hurt the dignity and welfare of women or undermine their status. However, the same Constitution states that people are free to practice their cultures according to their beliefs (Art 37). This sends conflicting messages to women who are guilt-tripped into thinking that, by demanding rights and seeking self-determination, they are being selfish and destroying culture.

There have been many delays in passing laws to protect women’s rights in marriage and family relations. Obviously, governments are reluctant to act. In Uganda, for example, the Domestic Relations Bill which seeks to protect women’s rights in marriage in relation to property, custody, divorce and succession has been in parliament for over 20 years.

In attempting to address women’s rights, the Ugandan government tends to deal with symptoms it hardly understands and often misrepresents. At the same time, the women who do understand the issues, are hardly heard. They often lack the knowledge and means of resisting popular biases.

Those who argue that everyone should be free to practice their culture ignore the fact that customary law, unwritten as it may be, is defined and guarded by a patriarcal society. The main tenet of customary law is the subordination of women. Those who want to keep women oppressed understand that reform would mean a loss of power and control. In fear of change, they pretend to be defending culture, while in reality they are fighting for the continued oppression of women.