Gift baskets July 23, 2025
Last week, we started to explore the important affirmations of personal liberty contained in the Constitutional court’s decision in Women’s Probono Initiative v Attorney General (Constitutional Petition No.12 of 2021).
In the main, we pointed out the extent to which the idea of individual self–determination–of the choice and freewill of adult human beings – greatly informed the court’s decision. In our view, this is perhaps the most critical contribution of this case to constitutional jurisprudence in Uganda.
At its core, it reflects – and asserts – one of the most basic things that makes us human: the capacity to choose, even where some of those choices might lead to deleterious results. Indeed, we make various decisions on a daily basis – for better or for worse – which might be unwise, based on available information (including scientific data).
Nonetheless, absent harm to third parties, these are decisions which are properly left to the adult individuals in question, regardless of the views of other persons (however well-meaning they might be).
Had the contentions of Women’s Probono Initiative (WPI) in this case been accepted, it would have had significant implications for a whole host of other issues that the Constitutional court of Uganda might in time be asked to adjudicate. Should the State, for instance, be allowed to dictate the amounts of alcohol which adult Ugandans are allowed to consume (or the times and places of such consumption) as Hon. Sarah Opendi’s November 2023 Alcoholic Drinks Control Bill sought to do?
In our column of 6th March 2024 entitled ‘Alcohol, the moral brigade and the Constitution’ we strongly argued that such matters were best left to the realm of personal responsibility – and this is a position we continue to hold todate.
Incidentally, some of the (health-based) arguments in Opendi’s Bill mirror those proffered by WPI in the polygamy case. The Memorandum to the Bill, for instance, referenced the ‘high burden of disease’, ‘decreased risk of overall mortality’, ‘chronic non-communicable diseases, including coronary artery disease, diabetes mellitus, congestive heart failure, and stroke’ associated with alcohol.
In the polygamy petition, WPI for its part argued that ‘concurrent sexual relationships [were] a principal factor in HIV/AIDS transmission’ and that by allowing polygamy, the government ‘directly facilitate[d] multiple sexual relationships which le[d] to increased HIV/ AIDS transmission’.
On this point, Justice Tibulya observed: ‘The contention that polygamy is directly associated with increased transmission of HIV/ AIDS is not sufficiently substantiated. The Uganda AIDS Indicator Survey 2011 which the petitioner heavily relies on has various statistics relating to different categories of multiple-sexual partners.
Therefore, while the impact of having multiple sexual partners on the transmission of HIV/AIDS cannot be downplayed, it is not entirely true that all polygamous marriages are affected. Moreover, HIV/AIDS transmission in both polygamous and monogamous settings is dependent on how the sexual partners practice the known safety measures.
It is of note that the report relied on by the petitioner also points to the prevalence of high-risk transmission in non-marital and non-cohabiting partners. Crucially, researchers and scholars have varied opinions and findings about the role polygamy plays in the transmission of HIV/AIDS, with some concluding that polygamy is likely to be protective against HIV/AIDS transmissions.
The foregoing considerations therefore discount the proposition that polygamy is the major cause or increases the risk of transmission of HIV/AIDS. Importantly, there is no evidence suggesting that most polygamous spouses are HIV/AIDS infected.
In my view, the petitioner overrates polygamy as a significant factor for the promotion of violence against women and as a cause for increased spread of HIV/AIDS.’ [paras 102-104, at pp.33-34 of the decision – footnotes omitted]. In my view, while the Court’s engagement with the available medical evidence and statistics in this regard was legitimate, just as critical was the court’s comparison between the possible harm that might arise from polygamy (on the one hand) and other human associations, such as ‘monogamous settings’, ‘non-marital’ and ‘non-cohabiting partners’ (on the other).
Essentially, the court adopted the common-sense view that at the heart of the health-based arguments was the reality that human beings have sex, sometimes with multiple partners, and that it was the nature of sex itself rather than the nature of marriage which carried the actual risk. If sex is the issue – then the form of marriage becomes irrelevant.
I find it unfortunate that it was the Constitutional court, rather than WPI, which adopted the more rational approach on this point, including with reference to ‘known safety measures’ in the context of HIV-transmission. Basically, the court without so many words, reiterated the long-standing governmental approach to the prevention and control of HIV-transmission which was reduced to ‘ABC’ – Abstain, Be Faithful or use a Condom.
That the petitioner sought to use HIV/AIDS as a basis for the outlawing of polygamy, in my view, is particularly problematic. Indeed, taken to its most logical conclusion, the petitioner’s argument might lead to the suggestion that all high-risk forms of sexual interaction – including commercial sex work – merit State sanction.
I do not think this is a position WPI would endorse. Indeed, in a study published in October 2024, entitled ‘A critical analysis of Uganda’s Sexual Offenses Bill, 2024’ WPI correctly, in my view, observed as follows: ‘Criminalization of sex work continues to be a controversial subject around Africa.
The discourse of “prostitution” tends to be based in moralistic (and dare we say, hypocritical) interpretations rooted in religion and not law…It is important to differentiate between transactional sex among consenting adults on the one hand and sex trafficking on the other. Indeed, in 1998 the International Labour Organization (ILO) called for the recognition of the adult sex industry, citing its expanding reach and unrecognized contribution to the gross domestic product (GDP).
Unequal gender power relations in Uganda restrict women’s employment opportunities and sex work becomes the best option out of very few choices. They also choose to enter the commercial sex industry because of the high unemployment rates, lack of education and professional skills, flexible work schedules, better earning potential, self-actualization, etc.
It is time to draw sex workers out of the shadows and legalize their services.’ [at pages 29-30]. In this report, WPI quite appropriately emphasized the right of consenting adults to make choices (even bad ones) and took pains to distinguish this from coerced forms of sex, such as those represented by sex trafficking.
WPI was quite correct to call for the decriminalization – and legalization – of sex work. Similarly, in my view (and for the very same reasons) it was quite wrong to petition the Constitution court for the outlawing of polygamy. Indeed, had the Constitutional court outlawed polygamy, WPI would have achieved, through law, what the overzealous early Missionaries in pre-colonial and colonial Uganda sought to achieve through proselytization.
Certainly, polygamy might not be an ideal form of marriage. However, it is undeniably a real aspect of Ugandan social relations. There are some – indeed very many – adult Ugandans who choose to enter polygamous unions, in the full knowledge of the shortcomings that may attend to these relations (such as competition for time, resources and attention and so on).
Many of these women (and men) are highly placed professionals (across all fields of human endeavour), with high incomes and significant exposure. Is this a choice they should be denied on the basis of a determination by some persons or organizations – however well-meaning – that other forms of human relations might be better?
If we went down this road, what other forms of human relations might the State be invited – or tempted – to outlaw (aside from those already the subject of legal sanctions, like the Anti-Homosexuality Act of 2023)?
Might the State, for example, require all single men and women (including Priests and Nuns) to marry, on the basis of certain statistics (health-based or otherwise) regarding the dangers of solitude? What about cohabitation – would not many of the same arguments against polygamy apply with equal force to this kind of union?
Incidentally, again, I hope I am not too remiss in pointing out that in February this year WPI – quite correctly – joined other women’s rights organization in opposing Clause 89 of the Marriage Bill (another Sarah Opendi-tabled Bill) which seeks to criminalize cohabitation.
WPI quite correctly pointed out that: ‘Marriage is very expensive. To hold a decent wedding in Uganda, one needs at least UGX 10 million just to gather family members. Many families also require bride price, often involving cows. If people cannot afford marriage, why punish them with jail time?’ and further that: ‘Cohabitation is a social issue, not a legal one. It cannot be resolved through punitive measures but rather through social interventions, primarily addressing financial constraints.
This provision is blind to Uganda’s socio-economic realities and, if passed, it could result in half of the population being imprisoned’ [See Prisca Wanyenya, ‘Women activists reject proposal to criminalize cohabitation’, Parliament Watch, 19th February 2025].
This is not to mention many other forms of liaisons which are increasingly the norm in Uganda, such as non-marital polyamory – should the State require everyone involved in multiple, consensual sexual arrangements to register with the National Identification and Registration Authority (NIRA)?
Should, perhaps, the names of one’s lawful spouse (or sexual partner) be included on one’s National ID, for the purpose of ensuring sexual and social fidelity to one person (not to mention the reduction of HIV transmission)?
It is, evidently, not difficult to see just how slippery the slope of State involvement in the affairs of adult persons is. Outside the marital and sexual arena are so many other questions implicating personal choice and freedom – including the freedom to make decidedly bad decision’s for one’s own health and well-being (alcohol, certain recreational and naturally-grown drugs, tobacco, fast food and a host of others).
Although I completely understand, for instance, my friend Dr. David Kabanda’s activism – through the Center for Food and Adequate Living Rights (CEFROHT) – around the importance of healthy food, I shudder to think of the idea of CEFROHT petitioning the Constitutional court to require a ban on the sale of chips, chaps, kebabs, burgers, pizza, sodas and other decidedly (and delectably) dangerous food items.
There might be a realm, in our social and political discourse, where persuasion – rather than legal compulsion – is the most human rights-affirming course of action. You do not like chips and chicken? By all means eat boiled beans and cassava. You do not like polygamy?
Perhaps try monogamy – or solitude. This – human choice and freedom – seems to be the critical message underlying the Court’s decision in Women’s Probono Initiative v Attorney General. There is, however, another consent-related aspect which the Constitutional Court referenced in this case: the interaction between law and power on the one hand, and the limits of the law, on the other.
In this regard, Justice Tibulya observed: ‘… I acknowledge that women are not a homogenous category. Their category includes literate, illiterate, rich and poor women. I therefore think that women’s experiences in marriage should not be solely assessed on the premise of age and consent.
The decision to contract a marriage and the experiences in that union may be functions of power dynamics. This, however, is as true for polygamous unions as it is for monogamous ones. Therefore, the answer to resolving the social ills which the petitioner cites may lay more with empowering women, than with outlawing polygamy.’ [para 112, at pp.36-37 of the decision].
In my opinion, this is a more nuanced view of the position – one which incidentally accords with the WPI position on cohabitation (referenced above). Indeed, just as WPI spoke of the need for ‘social interventions’ rather than ‘punitive measures’ with respect to cohabitation, the Constitutional court referred to the need for socio-economic empowerment rather than legal sanctions [Para 112, p.37], further noting that: ‘… the government is not under any duty to coerce its citizens into enjoying any rights.
Moreover, outlawing polygamy which this petition seeks, would deprive some citizens of the enjoyment of their Constitutionally protected rights to culture and to religion. Therefore, fostering voluntary engagement through education/ sensitization, empowerment, and equitable systems aligns better with the spirit of human rights’ [para 114, at p.37 of the decision].
In next week’s column we shall seek to conclude our examination of this important case by reflecting on the Court’s treatment of the question of the rights to freedom of religion and to culture.
At the same time, we shall consider some of the limitations of the court’s approach both to cultural and religious freedom on the one hand, and the question of consent generally (especially in relation to the extent to which the State can countenance harm to oneself or third parties), on the other.
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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