Uganda’s constitutional court has decided that the country’s divorce laws, requiring strict proof of dastardly sexual behaviour by one of the parties before a judicial divorce will be granted, are quite compatible with the constitution. And, moreover, that the question of changing the divorce law is a matter solely for parliament.
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Be warned, this is a long – and depressing – judgment.
It deals with Uganda’s present divorce laws and the claim by five petitioners that certain provisions of the law infringe the constitution. It was heard by the constitutional court, with judges drawn from the court of appeal, Uganda’s second highest court. That means that there is the possibility of appeal to the supreme court, the country’s apex legal forum.
The combined judgment is 125 pages; the five judges who decided the case wrote separate decisions, although one of the judges merely states that she agrees with the majority and has nothing useful to add.
Grounds that must be proved
Under Uganda’s ‘fault-based’ law, there are six possible grounds on which someone may ask for the courts for a divorce. To quote from the judgment itself, one of the following must be claimed – and proved – as grounds for divorce, by either the husband or the wife: ‘incestuous adultery; bigamy with adultery; marriage with another woman with adultery; rape, sodomy or bestiality; adultery coupled with cruelty; adultery coupled with desertion, without reasonable excuse, for two years or upwards.’
In addition, the court has to be satisfied that there hasn’t been collusion, condonation or connivance – known sometimes as the ‘three Cs’ – between the couple in relation to the grounds pleaded for divorce. And the person with whom the ‘guilty’ spouse has been having an alleged adulterous relationship must be named as a co-respondent.
Once the case is called, the court must hear evidence and there will be cross-examination to establish the facts to the satisfaction of the judge.
Namibia’s experience
I’ve had some experience of reading judgments related to such a divorce system. They came from the courts in Namibia where a new, no-fault divorce law has now been gazetted but not yet come into effect. From those past judgments I saw the horrific scope for damages claims against co-respondents, and for psychological harm to children, exposed to allegations by one parent against another, and it has all stuck in my mind.
Surely, I thought, the constitutional court in Uganda would find the gross evidence pulled from the litigants, like the ‘truth’ extracted by torture in olden times, an infringement of the constitutional right to dignity of all concerned. Surely, the court would find that it was not in the constitutionally-mandated best interests of the couple’s children, that they should be exposed to such claims and counter-claims by their parents, however true.
But that is not what the court found. By a majority of four to one, the Ugandan judges held that the existing law requiring a petitioner to prove fault on one of the grounds listed above, is constitutionally sound.
The role of the faith community
And it’s not just the outcome, though that is bad enough. There’s also the problem of how the decision was reached by these members of this specialist court, all of whom are expected to have a certain expertise in constitutional interpretation and adjudication.
The main majority judgment, written by appeal judge Hellen Obura, focused considerable attention on submissions by the Interreligious Council of Uganda made to parliament last year, dealing with draft changes to the marriage laws.
The judge details the number of adherents of each of the denominations and faiths represented in that council, according to a recent census in Uganda, and comes to the conclusion that between them, the memorandum was thus ‘presented on behalf of a total of 43,525,927 persons … which is 94.8% of the total population of Uganda’.
Against that impressive statistic, she writes that a finding that would permit a ‘no fault divorce’ – via a court declaration that the status quo is unconstitutional – would have a ‘net effect’ of the court overhauling the divorce laws ‘without the participation of the people of Uganda through their elected representatives!’ The exclamation is hers.
She writes that she is therefore ‘persuaded’ by the opponents of the petition ‘that any change that overhauls the divorce law in Uganda should be done through a legislative process that entails wide consultation with all the key stakeholders.’
Should judges defer to ‘opinion polls’?
The problem though, is that she doesn’t seriously ask what the constitution requires in this case, nor does she even appear to be convinced that a constitutional principle can trump what she assumes are the views and wishes of the majority of the public. Public opinion, the judgment suggests, is what counts.
It’s as though Uganda is, in reality, a country with a system of parliamentary supremacy, rather than constitutional supremacy. A country where the judiciary, instead of ensuring that the constitution informs all law and that all law meets the standards of the constitution, has become something completely different: a body that defers scrutiny of constitutional standard-setting to parliament. Or to opinion polls.
And then there are the experts whose views are summoned to explain why a no-fault divorce system would be bad for Uganda.
Strange selection of ‘experts’ quoted
A great deal of space is given to the views of Scott Yenor, for example. I hadn’t heard of him, but a Google search explains that he is an ‘American political activist, university professor and author’. He works for a conservative think tank, the Claremont Institute, where he is a fellow with the Center for the American Way of Life. He is known to have anti-feminist views and has claimed that some ‘career women’ are ‘medicated, meddlesome and quarrelsome’. He is a member of the Society for American Civic Renewal (a secretive, men-only, Christian nationalist organisation). The list goes on.
The judge quotes extensively from Yenor’s writings that are critical of really rather dated feminist views. She finds it necessary to ‘categorically state’ that she is not ‘demeaning or degrading’ the efforts that have been made by ‘well-meaning advocates for women’s rights’ and the ‘achievements that have been made worldwide and in our own nation which many of us are beneficiaries of.’ However, she adds, she has ‘reservations about radical feminism with its extremist ideologies some of which are highlighted by Yenor’. As though critics of the present system are necessarily and solely, ‘radical feminists’.
Of course, a court may quote from many authorities, but is Yenor the best available on any of the issues raised? And where do we read the views of relevant legal experts on constitutional law and human rights, for example?
Consent-based divorce ‘unsuitable’ for Uganda
Another of the judges, Dr Asa Mugenyi, perhaps sums up the views of the majority which is that the divorce laws must stay because they ensure a stable community. He writes, ‘While consent based divorces may be suitable for liberal democracies elsewhere, I am not persuaded that it is suitable for the values, norms and aspirations of the people of Uganda.’
On the question of the emotional and psychological trauma said to be experienced by parties to divorce applications, he writes that there is ‘no evidence that such trauma is limited to parties in divorce proceedings’. Parties to other disputes also ‘undergo such trauma’. ‘I do not think that there are people who enjoy coming to court over disputes whether it is of divorce, land or commercial.’
This judge also quotes the saying, ‘Marry in haste; repent at leisure’ and adds that if someone wants to protect their ‘privacy’, they can apply to court for an in camera hearing or to use initials (rather than their full names). He further claims there is no evidence that the rights and freedoms of couples involved in divorce proceedings were ‘affected adversely more than as compared to other court users’.
There’s much more along these lines, but it would be as well to quote briefly from the sole judge who would have found it unconstitutional to prove fault.
‘Without consent, marriage collapses’
This judge, Fredrick Egonda-Ntende, who is soon due to retire, asked whether free consent, on which marriage was based, applied only at the start of marriage or whether it needed to be present throughout the life of the marriage.
‘In my view, free consent … breathes life into marriage and sustains its existence. Without consent, a marriage cannot come into existence, and by implication if such consent is withdrawn during marriage, the marriage collapses.’
Uganda has a secular constitution
He also makes the crucial point that Uganda’s constitution has a secular basis, and that religious denominations should thus not be able to dictate issues such as whether a no-fault divorce would be constitutional. And then there’s his note that the Divorce Act dates from 1904, when it was introduced by the British. It reflected the British divorce laws of the time and has not undergone any substantial changes since then. This despite the fact that ‘the form of marriage’ the 1904 law was set up to dissolve ‘is far from the kind of marriage that we now have under … the current constitution.’
He concludes that the current divorce law is out of date and not in step with the constitution. It was imperative that the law and practice on divorce should be bought into compliance with the constitution: ‘It is the responsibility of the legislature and executive to do so. I implore the said organs to do so without further delay. The delay of 30 years since the promulgation of the (current) constitution is unacceptable.’
- Written on 24 August 2025