Africa-Press – Uganda. I have called this a strange judgment because it sets the precedent that the only ground that can dissolve marriage is “adultery” and the rest of the grounds cannot stand alone.
This is problematic as it comes at a time when jurisdictions are moving away from the colonial restrictions on divorce and are considering “irretrievable breakdown of marriage” as a justification for divorce where two parties can no longer live together as a couple.
I also find the judgment strange because it overlooks a certain precedent. In our common law jurisdiction, High Courts are bound by decisions of the Supreme Court and Court of Appeal.
The Constitutional Court and Court of Appeal have long settled the position that any of the grounds provided for in the Divorce Act are enough to dissolve a marriage.
Previously, Section 4 of the Divorce Act provided for on ground for divorce. It only allowed a man to divorce a wife on the ground of adultery. However, it required a wife to prove adultery plus any other ground such as cruelty, desertion, bigamy, bestiality, change of religion, etc, in order to divorce.
The said section was challenged in the Constitutional Court as being discriminatory against women.
In Uganda Association of Women Lawyers vs Attorney General Constitutional Petition No 02 of 2002, the Constitutional Court found the said provision unconstitutional and held that all the grounds of divorce mentioned in Section 4(1) and (2) of the Divorce Act are available to both parties to the marriage.
The effect of the aforesaid decision was considered in the case of Dr Specioza Wandira Kazibwe vs Engineer Charles Nsubuga Kazibwe Divorce Cause No 03/2003. In the Kazibwe case the court held that both adultery and cruelty are distinctive grounds, each in its own right.
The Court of Appeal got an opportunity once again to pronounce itself on what grounds should be proved to be entitled to divorce.
In the case of Rebecca Nagidde vs Charles Steven Mwasa Civil Appeal No 160 of 2018, the Court of Appeal held that “in light of Uganda Association of Women Lawyers vs Attorney General Constitutional Petition No 02 of 2002, it is sufficient for either spouse to allege one ground for divorce as set out in Section 4 of the Divorce Act for a petition or cross petition to succeed.
As stated by Kanyeihamba in Paul K Ssemogerere and Ors vs Attorney General Constitutional Appeal No1 of 2002 “When a court ignores or overlooks a binding precedent and decides a case as if that precedent does not exist, its decision is said to be a decision per incuriam.”
Therefore, in my humble opinion, the decision of Justice Keitirima is strange insofar as it holds that “without adultery, there is no divorce.”
Further, the decision of Justice Keitirima that was delivered on August 18, comes at a time when Parliament already amended Section 4 of the Divorce Act to provide that one ground is enough for divorce.
The Law Revision (Miscellaneous Amendments) Act 2023, which amends Section 4 of the Divorce Act, was assented to by the President on May 10. This means the judge should have been informed of the change in the law and his decision should have been progressive in light of the evolving nature of relationships. It is wrong for the court to let people remain married when they do not want to.
It is time that our courts and Parliament let persons who come together willingly, divorce willingly.
Kenya has already moved for no fault divorce as seen by the recent Amendment Bill.
All in all, I find that this judgment, if appealed, will be overturned as per the precedents I mentioned earlier. That’s why I call this a strange judgment.”
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