Time to amend the Marriage & Divorce of Mohammedans Act 1906
Zahara Kagoya
We have had a lot of fatalities caused by infernos in Uganda in the past 10 years, the most recent being Salama School for the Blind in Mukono where we lost eleven children. My condolences to all those who lost their loved ones and businesspeople who have lost lots of properties.
Looking through the debates on our social media platforms however, one sees a lot of misinformation on the issue of fires –actually some commentators have weaponized these infernos to appear like there is a political angle to them.
Currently one of the subtle and most prevalent areas of discrimination against Muslim women/ girls in Uganda today is the inequality that occurs within the context of family. Such injustices include minimum age of marriage, freedom to choose to enter marriage, finances, divorce, custody and guardianship to mention but a few. It is important to discuss this because of the centrality of the family to a woman’s life and ways in which the male have control over their wives, mothers, sisters and daughters.
The solution to some of these challenges lies in addressing the loopholes in the law. In 1906 the Marriage & Divorce of Mohammedans Act was introduced in Uganda with a lot of expectations but that same law has become the root cause of many violations of the rights of women and girls.
The Act in question is vague, non-operational and out dated. It does not expressly provide for pertinent issues such as age of marriage, capacity to enter into marriage, custody, grounds to divorce, and matrimonial property among others.
As a result Muslims are left with just one option which is following the Quran, Hadiths, Sunnah and other Islamic practices that are not codified. Many mis-interpret these provisions to the detriment of the women/ girls. This creates a vacuum in the Islamic Family law thus giving leeway for men to dominate and abuse women/girls.
To date in our Muslim communities all over Uganda, we still have child and forced marriages due to patriarchal interpretations of Islam, in some instances, women are not allowed to get married without the consent of parents or guardian which is not the same case as men and women are being denied the right to property upon dissolution of marriages because the Secular laws take precedent.
Additionally, the 1906 Act lacks provisions on how family disputes should be settled thus it is very difficult for Muslim women who are victims of gender based violence as well as those whose rights have been violated in the context of family, during and upon dissolution of marriage to get justice since most of the Judicial Officers in these courts of law are not well conversant with the Islamic family laws and practices.
Article 129(d) of the Constitution of the Republic of Uganda 1995 as amended establishes subordinate courts to the High Court, which includes Qadhi Courts to determine cases relating to marriage, divorce, inheritance and Guardianship as well as enact a law to establish khadi courts in Uganda to handle such cases.
It’s absurd that to date, the Qadhi Courts have not been operationalised.They now operate informally with utmost unfairness to the women since they are dominated by men.
Given this background parliament vested with power under Article 79 of the Constitution of the Republic of Uganda 1995 as amended to make laws on any matter, therefore it is high time that Parliament amended the Marriages and Divorce of Mohammedan Act to put in place clear provisions on Muslim marriage and its procedures, divorce and succession just like it enacted the Marriage Act, Divorce Act and the Customary Marriage (Registration) Act which govern the Church, Civil and Customary Marriages.
I urge the Executive and Members of Parliament especially those that profess the Muslim faith to urgently act on this matter because hundreds or millions of Ugandan women and girls are waiting for protection and peace that can be guaranteed by a clear law.
Ms Zahara Kagoya- An advocate of the High Court of Uganda and other subordinate courts, also a Feminist.
