CASE STUDY: Legislation should ensure that constitutional protections are implemented by and promoted in civil laws. Uganda’s Constitution (1995) provides constitutional guarantees to protect the rights of women in marriage. Importantly, it establishes the minimum age for marriage at 18 years, guarantees equal rights to both parties at, during and upon dissolution of the marriage, and it specifically requires Parliament to legislate protections for widows and widowers in inheritance and the parental rights of their children:
“1) Men and women of the age of eighteen years and above, have the right to marry and to found a family and are entitled to equal rights in marriage, during marriage and at its dissolution.
(2) Parliament shall make appropriate laws for the protection of the rights of widows and widowers to inherit the property of their deceased spouses and to enjoy parental rights over their children.
(3) Marriage shall be entered into with the free consent of the man and woman intending to marry.
(4) It is the right and duty of parents to care for and bring up their children.
(5) Children may not be separated from their families or the persons entitled to bring them up against the will of their families or of those persons, except in accordance with the law. Affirmative action in favour of marginilised groups” (Art. 32)
While Uganda’s Constitution provides equality and protections to women, its Succession Law conflicts and actually subtracts these rights. (See: Section on Inheritance Laws)
Promising Practice: When faced with legal pluralism on marriage, legislation should uphold the legal system that best advances women’s human rights and prevents discrimination. In Bhewa v. Government of Mauritius, Mauritius Supreme Court 1990, a Muslim couple challenged the right of the state to require civil marriage and its accompanying rights and requirements where there are both a civil and customary legal system, or whether such civil laws are unconstitutional under the Constitution that provides freedom of religion and freedom from discrimination on the basis of religion. The court found in favor of the state holding that the two systems, the civil laws and the “personal laws” co-exist but in their own respective spheres. When religion dictates certain requirements on marriage and tries to have those requirements have the force of law, it impermissibly steps out of its sphere. In this case, the Muslim couple’s desire to apply certain Muslim laws addressing marriage, divorce and devolution of property and permitting polygamy is not guaranteed by the constitution, because these practices violate civil laws for protection of the common good and prevention of discrimination against women. The appeal by the petitioners was dismissed.
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