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I Don’t: Uganda’s Controversial Marriage and Divorce Bill is Left on the Shelf

Uganda’s Marriage and Divorce Bill, which would make marital rape illegal, has been shelved again after public consultations.
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President Museveni of Uganda speaking at the London Summit on Family Planning in July 2012. Photograph by DFID.

A bill that would update Uganda’s laws on marriage and divorce, including making rape within marriage explicitly illegal, has stalled once again in parliament.

The Marriage and Divorce Bill, which covers a wide range of marriage, divorce and gender issues, including bride wealth, female circumcision and the rights of cohabitating couples, has been in the pipeline since 1964. The bill caused controversy from the beginning, with some objecting to the very naming of the proposal which places marriage and divorce in the same breath.

One of the more controversial elements of the bill is Clause 114, which refers to marital rape. While confirming conjugal rights in marriage, the clause states that a spouse may refuse to have sex ‘on reasonable grounds’, including poor health, surgery, childbirth or a reasonable fear of physical or psychological injury or harm. Whether marital rape is illegal or not is a grey area in Ugandan law. Some believe it to be covered already under the 2010 Domestic Violence Act, which has contributed to slowly changing attitudes towards violence in the home.

For Peter Magelah, Ugandan lawyer and researcher with the Advocates Coalition on Development and Environment (ACODE), Clause 114 is necessary to close a legal loophole. “Clause 114 is very important and to me it is the core of the Bill, since other laws do not cater for it,” he says. “Uganda inherited its marriage laws from the UK, where they have since moved on and made marital rape a crime [in 1991]. Uganda still sticks to it, yet many women suffer marital rape.”

Magelah argues that the current penal code, which makes a man guilty of rape if he ‘unlawfully had carnal knowledge of a woman without consent’, implies that it is possible to have lawful sex without consent. “This is interpreted by many to mean when the parties are married,” he explains.

It is believed that there is widespread rape within marriage in Uganda. Doctors have reported that it is a major cause of health problems among married women, including women who have died as a result of coerced sex soon after giving birth. Statistics from the Uganda Law and Reform commission say 78% of women have experienced some form of domestic abuse.

Public consultations

The Speaker of the House, Rebecca Kadaga, had promised that the Marriage and Divorce Bill would be passed by Easter, but extensive debate among MPs and the wider population has meant that the bill is going nowhere fast. Although President Museveni has backed the new law, most male MPs – who make up the majority in Parliament – opposed what was perceived as a ‘women’s bill’. On 13 March, 13 male MPs stormed out of the session, demanding an immediate suspension of the proposed legislation.

As the debate floundered, Kadaga called for an impromptu two-week recess at the beginning of March to allow MPs to consult their constituents. The results were mixed, although the majority of MPs reported that their constituents were opposed to the bill.

A common objection was that the Bill undermined traditional and religious understandings of marriage and property relations. Also worrying to some was an apparent importation and imposition of Western values. Wafula Ogutta, MP for Bukhooli Central, held 31 rallies and claimed that at each one his constituents rejected the Bill. “Everywhere, I have been told to return to Parliament and oppose the bill instead of wasting their time with useless and dangerous bazangu [white] ideas of rich educated women in Kampala,” he said.

For some who had previously supported the Bill, the public consultations led to a U-turn. Rose Lilly Akello, the Woman Representative for Kaabong District, stated after the consultations: “They are against the bill and they have told me that if they hear that I am pro the bill, that will be the end of my political career.”

However, there are concerns that the consultation process was flawed, particularly the use of public meetings where women may have felt unable to speak freely. Sylvia Tamale, the dean of the Law Faculty at Makerere University, does not believe the public consultations were a true signal of democratic participation. “The issue of ‘public consultations’ is a political tool used to kill bills and stall reform,” she argues. “Women’s rights are so fundamental that they should not be subjected to any form of referendum or public bidding and certainly not to a patriarchal sexist public.”

The ‘marital rape bill’

Some blame the media for failing to make clear the true content of the bill. Grace Natabaalo, social media commentator and program associate with the African Centre for Media Excellence in Kampala, argues that “The media in Uganda unfortunately kept focusing on a few controversial issues in the bill like marital rape, bride price, cohabitation and property sharing without going into details about the real issues...leading to the distortion and rejection of the bill.” Some reports referred to a ‘marital rape bill’, despite the fact that only a single clause refers to the issue.

Magelah also argues that it was distorted perceptions which led to the rejection of the bill. “The bill was perceived as a women’s bill and an attempt by women activities to undermine ‘African culture’,” he explains. Revealing this attitude, an interviewee speaking to Muslim Community Report said that “in African culture there is no marital rape”, with marriage presumed to imply consent.

Magelah argues that the marital rape clause was rejected due to a lack of understanding of the wording of the clause. Far from granting the right to refuse sex, in fact, marital rape is defined only in reference to extreme circumstances, such as immediately after childbirth or in the case of sickness.

Betty Amongi, chairperson of the Uganda Women’s Parliamentary Association (UWOPA), has said that the proponents of the bill would agree with government to water down the clause even further, to remove psychological injury or harm from the ‘reasonable grounds’ for refusing sex, and to clearly define what constitutes poor health.

Gender politics in Uganda

Equality legislation in Uganda has been, in recent years, simultaneously shocking and contradictory. The infamous anti-homosexuality bill in 2012 – which Kadaga had promised as a “Christmas gift” and, again, failed to deliver – was followed by an anti-pornography bill, which could have seen women being arrested for wearing miniskirts.

But despite these high-profile cases, small moves towards the improvement of gender relation have been noticeable. This year, the government introduced free sanitary pads in schools and made sex education in schools compulsory.

Traditional attitudes nonetheless remain entrenched. Jackie Asiimwe, lawyer and member of the Association of Women Lawyers in Uganda, argues that Uganda remains a very patriarchal society. “Many times, women, especially in public and political life, are reminded that they can be all they want outside the home, but when they get home, they must remember that they are a wife,” she says. “At home a woman has a boss called a husband, and what the husband says goes.”

The bill has provisions for equalising the rights of men and women in marriage and divorce, currently often defined by patriarchal customs. If passed, it would give women rights to property and child custody following divorce and grant legal recognition to cohabiting couples – an issue of contention for religious groups in particular.

For Asiimwe, “Liberating marriage is the most basic but also the most powerful thing for women. True liberation for women begins with equality in the home.”

Tamale agrees that the law is a critical first step towards the transformation of women’s position in Ugandan society. But, she argues, structural changes in attitude are also needed: “Enhancing gender awareness in formal education and grassroot communities as well as building the political will and commitment to tackle the structural and institutional impediments responsible for women’s oppression and subordination will go a long way on the road to emancipation.”

Where next?

The bill currently remains in limbo, shelved and with no clear indication of when it will return to Parliament or in what form promised further consultations will materialise. Women activists, including Jackie Asiimwe, are still lobbying parliament to pass the bill. Lobbying efforts have also been directed towards the church, media and male politicians.

For Asiimwe, it is necessary to bring the issue of marital rape out into the open. Dismissing it as a private ‘bedroom matter’ is insufficient and dangerous for potential victims.

“We must come to a place where we are unafraid to discuss the good, the bad and the ugly in the sexual relations that go on in our homes, behind closed doors,” she says. “Through our domestic violence struggles, we broke the silence on the vice. It’s still hard, but many Ugandans will agree that domestic violence is bad. We must now do the same for marital rape. If we don’t break the silence on this one, more people will continue to suffer.”

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