2nd December 2004.
Will the DRB settle troubled marriages?

By Nabusayi L. Wamboka

Marriage! Maybe it boils down to sex or the lack of it, but when it means death, depression and destruction, there is something that must be done about an institution millions are dying for.

The Domestic Relations Bill (DRB) will soon make its way on the floor of parliament again and despite the strong campaign and political backing that it has received, there is still an angry high tide that is hanging, waiting to splash over specific issues.

Early this week, Law and Advocacy for Women in Uganda (Law-U) invited MPs on the Local Government and Public Service Committee of Parliament for further discussions and consultations about the Domestic Relations Bill. The committee is one of several that have been consulted on the bill.

The Member of Parliament for Mwenge County South, in Kyenjojo district who is also a director with Law-U, Dora Byamukama said the committee was targeted specifically because it has many lawyers, but especially because it will work with local council courts at the grassroots.

"We want to work through the parliamentary committees to sensitise people about the domestic relations bill. The DRB continues to present different challenges," she said.
And the challenges are enormous.

There is nothing as controversial as property rights within marriage.
The DRB defines matrimonial property and the rights of each spouse regarding property. The Bill also recognises the right of either spouse to acquire and own property individually.

"These are very important provisions because property ownership in marriage is very controversial and in most cases women are disadvantaged because their contribution to the acquisition of that property cannot be quantified," LAW-U's Jacqueline Asiimwe-Mwesige said in her paper highlighting the human rights dimension of the DRB.

Said Asiimwe-Mwesige: "In Uganda, although there are no specific laws that prohibit women from owning properly, there are discriminatory cultural practices that inhibit women from owning property - especially when they are married. In some cultures it is claimed that once a man has paid bride price for the wife, whatever property the woman owns belongs to the man."

According to clause 65 [of the DRB], matrimonial property shall be owned in common. Property held by a spouse as trust property acquired by way of inheritance or otherwise, shall not be part of matrimonial property.

But Mr. Fred Ruhindi, MP for Nakawa Division in Kampala district, foresees some hurdles when it comes at implementation.

"The problem is that in principle nobody disagrees with the idea, but there will be problems at implementation. Wealth and love are difficult to differentiate. What happens if after one month she files for divorce? That is crude business," he said.

According to the DRB, immovable matrimonial property which provides the basic incomes for the family (on which the family derives sustenance) shall be owned in common, as provided for under clause 65 as follows:

  • - Acquisition of 20 percent share in the property by the other spouse after 5 years of marriage.
  • - Acquisition of 30 percent share in the property by the other spouse after 10 years of marriage, and;
  • - Acquisition of 50 percent share in the property by the other spouse after 15 years of marriage.

The above proposal does not please everybody, though.
Says Asiimwe-Mwesige: "That is a gender-biased and discriminatory manner of acquiring interest in the property of the other spouse. The underlying notion is the assumption that a woman has to earn the right to have a share in her husband's property. The percentages should be done away with and both spouses should have equal interest in each others property ab initio."

There are even more unresolved issues, according to Nakawa MP Ruhindi.
"What happens to her rights when the property is communal? We need to have proper reviews and percentages," Ruhindi said.
The other sensitive and often more controversial issue is that of polygamy.

According to Asiimwe-Mwesige, by its very nature and practice, polygamy confers power, status and privilege to the man over and above that of a woman by entrenching women's subordination within the institution of marriage.

The DRB under clause 10 recognises several marriages in Uganda, including polygamous marriages and Islamic marriages.
"Culture should not be sustained even when it is bad, but what do we do with Muslims? We need a law that is effective and implementable. We have to tread carefully on existing structures culturally, religiously and otherwise," Ruhindi said.

Among other things, the issues about bride price, domestic work, widow inheritance, cohabitation and marital rape are still contentious.

"There is nothing like gifts. You don't negotiate a gift. Elders are insisting on high bride price. [Bride price] has become a social problem. Young people don't have a chance to establish proper relationships because the bride price is so high. When they try they end up in prison and when they are released they vet their anger on the girls," notes Dr. Alex Okot, MP for Moroto, in Lira district said.

Mr. Charles Byaruhanga, MP for Kibale (Kamwenge district) and chairman of the Local Government and Public Service Committee of Parliament, says that even culture is changing.
"The Bakiga used to be very argumentative. If a stranger came and found them at such a meeting, they would ask what they are selling or bargaining for. What do you tell people that you are haggling about [bride price]. These days if a daughter and mother agree, that is done," he said.

The issue of marital rape remains most contentious. According to Okot, marital rape is a very difficult thing to prove.
"We shall have problems with that one. Somebody says I have been raped when they are not interested in marriage. They also look at what to gain in a marriage. This is a very difficult issue to handle, it is all about wealth and no love," he said.
Byaruhanga agrees.

"Some people will start having strategic marriages. When they see some people with wealth, they start thinking how they will get there. Even if I consented to sex with my wife who is to prove that it is rape?" Byaruhanga said.

Ruhindi gave it a different spin. "So if they arrest me for raping my wife and the judge decides I go to Luzira for six months, do I go back to my wife?" he said.

According to Ruhindi, marital rape must be considered as part of the package of the total breakdown of marriage but must not be singled out.

Asiimwe-Mwesige, however, argues that rape happens when there is no audience and it is still a crime. Despite the shortcomings in the DRB, LAW-U says the aim of the Bill is to reform and consolidate the law relating to marriage, separation and divorce.

It also aims to provide for the different types of recognised marriages, marital rights and duties, grounds for dissolution of marriage, rights of parties upon dissolution of marriage and all other purposes connected thereto.

"The Bill makes a tentative attempt at outlawing cultural practices that have a negative impact on women. However it should go further than outlawing only widow inheritance [and include] all other harmful customs and practices related to marriage that negatively impact on both men and women," Asiimwe-Mwesige conclude.

Why Uganda needs the DRB

According to LAW-U, the 1995 Constitution considers family as the natural and basic unit of society, which is therefore entitled to protection by society:

  • - All laws in Uganda must conform to the Constitution, which is the parent law. All laws that are inconsistent with the Constitution are void to the extent of their inconsistency and must change to match the spirit and letter of the parent law.
  • - Because the family is the basic unit of society, a healthy and productive family in which peoples' rights are promoted and respected will produce a healthy and productive state. The state of the family has an effect and reflects at the wider level of the nation state.
  • - There are many inequalities that are manifest in the home and they need to be addressed.
  • - Because we need to remove the inconsistencies and contradictions in the various pieces of legislation related to family law that presently apply in our country.
  • - Because the present law is scattered in several places, the DRB consolidates the relevant law for ease of reference.
  • - Because as a state party to several human rights conventions among them the African Charter on Human and Peoples' Rights, International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Uganda needs to fulfil our international obligations under different conventions.