December 2, 2024
By, Isaac Senabulya senabulya
The Law Development Centre (LDC) has rejected the proposal to impose a fine of Ugx 10M or jail sentence of 3 years for cohabiting couples in Uganda, arguing that criminalizing cohabitation would be impractical to implement, as this would require the establishment of jails at village level, given that majority of Ugandans are trapped in such relationships.
Leading the rejection was Paul Mukiibi, Head, Department of Law Reporting, Research and Law Reform at LDC while appearing before the Joint Committee of Legal & Gender on Tuesday during the consideration of the Marriage Bill, 2024, that was tabled by Sarah Opendi (Tororo DWR).
“This is quite worrying and surprising to have it in this age and era. As we are fighting for rights of cohabitants and when we say we want to criminalize cohabitation, it gives us a very loud cry that our ears aren’t on the ground and we are forgetting the percentage of cohabitants is high. If we are going to take the direction of criminalizing cohabitation and arresting and imprisoning, there is a very huge budget of establishing prisons at village level,” said Mukibi.
His comments were in reaction to a proposal in clause 89 of the Marriage Bill where Opendi proposed a fine of UGX10M or jail sentence of 3years to be imposed on people holding out as though married where she went further to explain that holding out under the Bill means living together as husband and wife, acquiring or owing property jointly bearing children together and taking on the man’s surname by the woman.
“Because that means, every day we are going to cause arrests, it isn’t something that is going to be workable at all and practical in this era. In some jurisdictions, if you cohabit for 6 months and others two years, you are presumed legally married. In Uganda, you cohabit until death without legal protection, that isn’t safe especially for the female citizens,” added Mukiibi.
Allan Mayanja (Nakaseke Central) wondered if restricting legally married people from indulging in cohabitation with other people would work asking, “Don’t you think we need to criminalise cohabitation for those who are legally married instead of deleting completely? But we can see and we go into details and say, it should be criminal for those who are legally married.”
However, Mukiibi maintained his stance against criminalizing cohabitation arguing that the people involved in such relationships are consenting adults.
“As much as you already have a legal bond for instance that you are in a monogamous marriage and you aren’t supposed to go into extra-marital affairs, there are already safeguards. Criminalizing is going to cause more domestic violence and more suffering in homes. It isn’t going to cure this mess. Criminalising isn’t going to cure anything because whether we like it or not, we must legislate in the way of reality, that still, they will continue cohabiting,” argued Mukiibi.
The LDC also rejected the proposal to change civil marriages from monogamous to potentially polygamous saying this would likely abuse the institution of monogamous marriages with Mukiibi noting, “Unless there are clear safeguards on how to do this and also looking at the implication of doing this, it may likely abuse the institution of a monogamous marriage.”
The other proposal rejected by LDC was Clause 39(1)(a) that proposed avenues for conversion of monogamous marriage to a potentially polygamous marriage, which Mukiibi said could destabilize marital expectation because at the time people are entering marriage, they are aware of the various options, there is polygamy and there is monogamy.
Mukiibi remarked, “So if one has chosen to go monogamous, then one of the couple decides to convert to polygamy and one of the partners isn’t willing to turn into polygamy that becomes some kind of betrayal. What are the guidelines? Unless there are going to be clear guidelines for those who are going to do so, how do they convert from monogamy to polygamy?”
The Law Development Centre however welcomed the proposal in clause 21, that allows Ugandan citizens to conduct marriages in Embassies, Missions, Consulates, describing such a proposal as a progressive legislative move that would reduce the burden of people having to come back to Uganda in order to carry out a marriage and later return to their resident nations.
The other proposal welcomed by the LDC was the flexibility of prenuptial and post nuptial agreements, which would allow couples to set property and financial terms through agreements which offer flexibility and empower spouses to clarify ownership and distribution, promoting open discussions and mutual understanding.
Mukibi noted, “Of course, recently our courts have been making decisions and these decisions, some of these pronouncements have been Obiter.
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