by DR BUSINGYE KABUMBA July 16, 2025
Last week, on Thursday 10th July 2025, the Constitutional Court of Uganda handed down a most interesting judgment in the case of Women’s Probono Initiative v Attorney General (Constitutional Petition No.12 of 2021).
The petitioner, a non-profit organization, had sought to obtain a declaration that the practice of polygamy in Uganda was unconstitutional on the bases, among others, that the practice: i) discriminated against women, contrary to Article 21; ii) facilitated emotional and physical violence, and offended the right to health contrary to Articles 24, 43 and 44; and iii) violated women’s rights to equal sharing of property upon dissolution of marriage contrary to Articles 3l(1) (b) and 33.
For the Attorney General, it was mainly contended, among other things, that: i) polygamy was a cultural and religious practice which was protected under Articles 37 and 29; and ii) the practice was voluntary – adult women were free to consent to such marriages under Article 31 (3).
A unanimous Constitutional Court (Justices Irene Mulyagonja, Oscar Kihika, Margaret Tibulya, Moses Kazibwe and Asa Mugenyi) disagreed with the petitioner on all the grounds raised. In the main, the Court considered that polygamy was a matter which rested on the choice of consenting adults, who could be presumed to be aware of the disadvantages of such unions at the time they contracted them.
Another major consideration for the Court was the fact that the issue implicated the right to culture and the freedom of religion, also protected under the Constitution. The Court was also unconvinced by arguments that polygamous unions were inherently cruel or more susceptible to health risks (such as a greater risk of HIV transmission).
Understandably, the Women’s Probono Initiative (WPI) is not pleased with the decision. In a statement issued on 14th July 2025, WPI asserted that the decision: ‘represent[ed] a deeply regrettable setback for gender equality, human rights and the fundamental dignity of women in Uganda’ and that it ‘sen[t] a message that deeply entrenched discriminatory practices can be legally upheld, even when they clash with fundamental human rights principles that Uganda has voluntarily committed to upholding.’
I have nothing but the greatest respect for WPI. They have done, and continue to do, significant and groundbreaking work towards the advancement of human rights in Uganda generally, and the rights of women in particular.
However, for a number of reasons, I think the Constitutional Court was correct both in terms of its reasoning and the conclusions it reached in this particular case. There are, of course, some problematic aspects of the decision (such as the Court’s analytical approach to the equality and non-discrimination issue, and some language relating to the right to health) but these can be dealt with on another occasion.
In the first place, above all else, what was at issue before the Court was as to the ways in which adult human beings choose to love. In this regard, I return, again to what must be one of the most beautifully written passages in Ugandan legal scholarship – Professor Oloka Onyango’s article ‘Debating love, human rights and identity politics in East Africa: The case of Uganda and Kenya’ in the 2015 African Human Rights Law Journal, in which he observed: ‘While the “right” to love appears in no known legal document – national, regional or global – there is no doubt that it is a universal human sentiment.
If one was to perform a dissection of the right to love, it would be found implicit in several human rights principles – freedom of association and expression, the right to health, the right to privacy and especially in the right to human dignity.
Despite the absence of the right in normative form, it is a central feature of human existence, especially within the context of sexual expression. To deny its existence is to deny the very essence of our humanity.’ (at page 29).
Interestingly, at no point in the Court’s 46-page decision did the word ‘love’ appear. Nonetheless, a significant part of the Court’s reasoning was certainly ‘love-adjacent’ especially that which turned on the idea of marriage as a reflection of the free will of the parties to it.
On this question, Justice Tibulya, who rendered the lead judgment of the Court, offered this resounding defence of personal autonomy implicit in the choice of marriage arrangements: ‘Crucially, polygamy and monogamy are not personal characteristics but are conditions which result from the exercise of a Constitutionally protected freedom of choice.
The imponance of the legal provisions which allow citizens to make marriage choices must be underscored. Article 31(l) & (3) which provides for the right to marry and found a family serves multiple fundamental purposes in society. It balances individual freedoms with state interests.
It protects personal autonomy and privacy, and it recognizes marriage and family formation as core aspects of personal liberty. It allows individuals to choose their partners and shape their private lives without unjust state interference.
The article therefore prevents forced marriages or state-imposed restrictions (e.g., bans on interracial or interfaith unions), thereby stabilizing the social structure.’ [para 51, at p.18-19 of the decision].
This is critical language – of relevance not only to the question of polygamy but other forms of marital and sexual arrangements, including those which were in issue in the case of Fox Odoi and Others v Attorney General and Others (Consolidated Constitutional Petitions Nos 14, 15, 16 and 85 of 2023). Indeed, the Constitutional Court’s language here strongly (and in my view correctly) suggests that Article 31 (2a) – which is a state-imposed restriction upon a particular kind of marriage – is unconstitutional.
If anyone needed any stronger proof of the patent illegitimacy (and internal and external incongruency) of the decision of the Constitutional Court in Fox Odoi it would be found in this most recent decision of the same Court.
The Court returned to the theme of freedom and choice at Page 28 of the decision, where Justice Tibulya asserted that: ‘Recalling that under the prevailing legal regime the rights to practice a religion… to marry, including the mode of marriage … and to culture … involve making choices from legally available options, the argument that the religious practices in one type of religion create inequality and discrimination for women remains unsupported… It must be emphasized that each of the principles enshrined in Articles 29 … and 37 is a means to the same end; fostering a more inclusive society where everyone has equal opportunities, with a view to upholding the inherent worth of every individual thereby reinforcing democratic values.’ [at paras 82-84].
The Constitutional Court also made a point of distinguishing adult polygamous unions from more coercive arrangements, noting: ‘There can be no doubt that involuntary polygamy (e.g. forced marriages, underage unions, or systemic coercion which is defined by intentional infliction of suffering) aligns with human rights violations … However, where all parties are consenting adults … polygamy does not constitute torture or cruel, inhuman or degrading treatment or punishment.
It is of note that even international law (e.g., Universal Declaration of Human Rights) condemns forced marriage but does not explicitly ban consensual polygamy.’ [paras 110-111, at p.36 of the decision].
The Court in Women’s Probono Initiative reiterated the importance of choice at page 37, where Justice Tibulya observed that: ‘It must be emphasized that the practice of polygamy in Uganda is a matter of choice. This underscores the principle of non-interference with citizens’ exercise of their individuality, the essence of human rights.
Coercing citizens into practicing monogamy for example, would be antithetical to the very idea of human rights.’ [At para 114] A comparison of the language in Women’s Probono Initiative, on the one hand, and that in Fox Odoi, on the other, again puts the latter decision in the necessarily bad light in which it must appear for time immemorial.
The Court in Women’s Probono Initiative correctly condemns coercion (which in the arena of sexual union would include rape, defilement and other forms of violations of human dignity), while valorizing consent – as an aspect of personal liberty and autonomy.
In the Fox Odoi case, quite unfortunately, the Constitutional Court twisted itself into strange knots as it tried to locate extra-legal and extra-constitutional limitations to personal dignity and autonomy.
Consider, for instance, as but one example out of several other strange postulations in Fox Odoi, the idea put forward in that case that: ‘the right to dignity ought not to operate in the abstract but within the social, political, and cultural context of a society, particularly their communal culture, norms and values’ [Fox Odoi case, Para 229, Page 88].
These are two different visions of the importance of individual liberty, choice and autonomy in a constitutional democracy – and they cannot both be correct. In my view, again, the decision in Women’s Probono Initiative further exposes the sheer bankruptcy of the Court’s reasoning and conclusions in Fox Odoi.
I hope, in time, the Constitutional Court can find the grace to admit that Fox Odoi was not only an unprincipled approach to constitutional adjudication, but also significantly per incuriam, and expunge that anomalous and outlying juridical misadventure from the record.
The decision in Women’s Probono Initiative is a short one (46 pages). However, it goes a long way in undoing some of the damage done by that more lengthy (203 page) constitutional train wreck that was the decision in Fox Odoi. In the column next week, we shall continue to explain exactly why the approach taken by the Court in Women’s Probono Initiative does justice to the letter and spirit of the 1995 Constitution.
The writer is Senior Lecturer and Director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and Legal Philosophy.
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