By Anna S. Sussman
Sunday, June 24, 2007
Uganda's Constitutional Court recently nullified a law that made adultery criminal for women, but not men. The case also strengthened women's rights on divorce and inheritance. First in a series on women and the rule of law in Africa.
KAMPALA, Uganda (WOMENSENEWS)--Here in the capital of Uganda, policemen arrested a 30-year-old woman in her home five years ago. They took her to a hospital and forced her to undergo a complete medical examination. She was then taken to jail and charged with adultery, a crime only applicable to women.
Her husband also had extra marital affairs and kept a mistress, but he was not breaking the law. Adultery for men was legal. It was only a crime for wives.
But a group of women's rights advocates, Law and Advocacy for Women in Uganda, set out to change all that.
In April, the Kampala-based group brought a separate case before the Ugandan Constitutional Court, arguing that the 1995 national constitution ensures equal protection under the law. The court agreed and struck down criminal adultery, a profound victory for women's rights here. Now, husbands and wives are equal before the laws of adultery. Sort of.
While the laws now apply equally--adultery is decriminalized for both sexes--the real life consequences of adultery for women and men remain gravely different.
Across Uganda, where polygamy for men is legal, adultery committed by husbands is widely tolerated, while adultery committed by wives results in shame and stigma, says Irene Mulyagonja, a family law lawyer in Kampala.
"There is an attitude here that men are entitled to commit adultery, it is a direct result of the legal and cultural tolerance of polygamy," she says. And while most couples opt for the monogamous or "civil" marriage over the polygamous or "customary" marriage, Mulyagonja says "almost every husband in the country commits adultery, even those in civil marriages; it is almost 100 percent."
Makerere University Faculty of Law Dean Sylvia Tamale agrees. "Most Ugandan husbands have mistresses or secret wives, even if they are in civil marriages. Monogamy doesn't fit here. It is totally alien. But women are shunned if they commit adultery."
The differing attitudes toward male and female sexual entitlements are what made the ruling so important. "The unjust adultery law was part and parcel of women's struggle for sexual autonomy," says Tamale. "And the control and regulation of our sexuality is central to our subordinate status."
Despite a countrywide bias in attitudes toward adultery, the Constitutional Court unanimously declared the law to be discriminatory and unconstitutional.
The ruling stirred plenty of outcry in this largely Christian East African nation. Many church-based groups argued that it promoted immorality, promiscuity and Western decadence. The decision headlined both of the country's major newspapers and was followed for weeks with letters to the editor decrying it as the destruction of marriage and the decline of a morally upright culture.
A group of parliamentarians threatened to pass a law criminalizing adultery for both sexes. "But they knew they couldn't do that," says Tamale. "Because they would all be thrown in prison." A cartoon in the popular New Vision newspaper depicted members of parliament fleeing the chambers when the proposed criminalization was mentioned.
The ruling is particularly relevant here given cultural attitudes toward divorce. Divorces in Uganda are heavily stigmatized and difficult to obtain. Most marriages end in estrangement rather than legal divorce.
Until the adultery law was struck down, husbands estranged from their wives were permitted to have new relationships. But women would live alone for years or risk arrest if they saw other men, says Mulyagonja. Many of her clients charged with criminal adultery were estranged from their husbands and had lived apart for many years. Still, they were arrested and brought to court for their new relationships.
The demise of the criminal adultery law will also make divorces easier to obtain. Now, wives wishing to divorce their husbands will no longerface the threat of criminal prosecution upon divorce if they have taken another man during their estrangement.
"There are implications here for HIV-AIDS," says Mulyagonja. "Before, a wife could not divorce her husband solely on the grounds of adultery. She was forced to endure whatever diseases he brought home. Now she is empowered to leave him when he sleeps around."
Embedded in the adultery ruling were a number of other decisions pertaining to inheritance. Laws that gave widowers the right to 100 percent of deceased wives' property and widows only 15 percent were also nullified, as were laws that gave a deceased husband's family full rights to a widow's children. As of yet, no new succession laws have been drafted to replace them.
While these rulings failed to generate the popular uproar faced by the adultery ruling, they all speak to a similar trend.
Despite a culture of inequity, women's rights are slowly but surely being protected by the law. "Our constitution is very good," says Mulyagonja. "It gives us a very strong base from which to advocate for our rights. That's why I have hope that in my children's lifetime, maybe, polygamy too will be outlawed."
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Anna S. Sussman is a print and radio journalist. She currently lives in Uganda.
This series is supported by the Carnegie Corporation of New York.