Abstract
This article examines the constitutionality of the requirement to establish certain grounds - adultery, cruelty, desertion, bigamy and others - as a condition for the grant of divorce in Uganda. It begins with an examination of the existing legal framework, including reforms already achieved through public interest litigation, and certain changes sought to be effected via judicial activism. The article then proceeds to an analysis of the human rights issues implicated by a fault-based framework, and a consideration as to whether the public interest-based limitations in this regard pass constitutional muster. Ultimately, it is proposed that the only means of aligning this area of domestic relations law with the Constitution is through the elimination of fault as a requirement for dissolving marital bonds. Such reform would also be consistent with critical public policy concerns, including the welfare of children and the sanctity of marriage itself.
Highlights
Summary: This article examines the constitutionality of the requirement to establish certain grounds – adultery, cruelty, desertion, bigamy and others – as a condition for the grant of divorce in Uganda
It begins with an examination of the existing legal framework, including reforms already achieved through public interest litigation, and certain changes sought to be effected via judicial activism
The article proceeds to an analysis of the human rights issues implicated by a fault-based framework, and a consideration as to whether the public interestbased limitations in this regard pass constitutional muster
Summary
(M)aybe we too busy being flowers or fairies or strawberries instead of something honest and worthy of respect ... you know ... like being people. Its importance in human relations is self-evident If this needed any demonstration, it would be found in the sheer volume of artistic and other work dedicated to the exploration of love’s various forms and expressions. It seems that this powerful emotion finds scant attention in legal imagination. The 1995 Constitution of Uganda, for instance, does not even mention it once,[1] and one would be hard-pressed to locate serious legal work dealing with the subject.[2] In this neglected landscape, the articulation by Oloka-Onyango of a ‘right to love’ is a most welcome exception. The article contends that the recognition of the right to ‘unlove’ – as manifested through providing for a ‘no-fault’ divorce regime – is the only means by which the legal framework for divorce in Uganda can be made consistent with the letter and spirit of the 1995 Constitution
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