Court throws out outdated marriage laws
Teenage mothers in Tororo District. Tororo District Council passed a by-law to curb the rising cases of teenage pregnancies and child marriages in June 2022. PHOTO | FILE
What you need to know:
- In 2022, the Ministry of Gender said one in four children in Uganda is married off before they are 18 years. The National Planning Authority data, which was released in 2021, showed that Uganda loses Shs1.6 trillion annually in tackling issues of harmful cultural practices, including child marriage.
The Constitutional Court has outlawed child marriages after it reaffirmed that the consent age of those intending to get married is 18 years.
The petitioners in this case; Mr Michael Aboneka and Mr Martins Kirya, argued that Section 11 (a) of the Customary Marriage Act, 1973, the Marriage and Divorce of Mohammedans Act, 1906 and the Hindu Marriage and Divorce Act, 1961, allowed child marriages of their daughters who are 16 years, contrary to the Constitution that demands that one has to be 18 and above.
Yesterday, five justices of the court agreed with the arguments of the petitioners and declared that the parents and guardians who were giving out their daughters in marriage under the aforementioned laws, did so unconstitutionally.
“I would declare that Section 11 (a) of the Customary Marriage; Section 5 (1) (a) of the Marriage and Divorce of Mohammedans Act, to the extent that it permits registration of marriages involving persons below the age of 18 years and Sections 2 (1) c and d and 3 of the Hindu Marriage and Divorce are in contravention with Article 31 (1) of the Constitution because they permit girls between the age of 16 and 17 to marry, yet the highlighted constitutional provision permits marriage of only girls aged 18 years or older,” ruled Justice Elizabeth Musoke who wrote the lead decision.
The other justices are; Fredrick Egonda Ntende, Christopher Madrama, Monica Mugenyi and Christopher Gashirabake.
In her analysis, Justice Musoke stated that the above mentioned impugned laws were regulating marriages by prescribing the minimum age for marriage. She cited Section 11 (a) of the Customary Marriage Registration Act that stated that a customary marriage shall be void: “If the female party to it has not attained the age of 16 years, the male party to it is has not attained the age of 18 years,”
The judge further quoted the Hindu Marriage and Divorce Act that had stated that marriage may be solemnised if the bridegroom has attained the age of 18 years and the bride attained the age of 16 years.
Reacting to the ruling yesterday, Mr Aboneka, one of the petitioners, said: “We are happy with the decision of the court, most things had been taken as normal, unfortunately, even the law has been empowering people to marry girls who are below the age of consent. Let’s now fight child marriages to ensure that no girl is married off without her consent and while under 18 years,”
The court, however, did not make orders to legal costs on grounds that the petition was a public interest matter.
According to United Nations International Children’s Emergency Fund in Uganda, nearly 50 percent (3 million women) of 20-49 years were married by the age of 18 while 15 percent (900,000 women) by 15 years. Most cases are recorded in the rural areas.
Last June, the government launched a national strategy to end child marriage and teenage pregnancy by 2026.
The State minister for Children Affairs, Ms Sarah Nyirabashitsi Mateke, said the strategy was part of the government’s effort to end the harmful practices of child marriages and teenage pregnancies in the country because ‘‘such vices are shameful and disgusting’’.
Ms Mateke announced the strategy in Butaleja District during celebrations to mark the International Day of the African Child.
Authorities said at least 5,265 girls between 10 and 19 years were impregnated and had dropped out of school from 2019 to 2020 in Butaleja.
