In a unanimous decision delivered on 12 December 2024, the Constitutional Court has granted leave for the Applicants to intervene as Amicus Curiae in Constitutional Petition No. 09 of 2022. The court determined that the Applicants met the requisite legal requirements under The Judicature (Amicus Curiae) Rules, 2022 (S.I. No. 54 of 2022).
Background to the Petition
The Petitioners in Constitutional Petition No. 23 of 2020 challenged various provisions of the Divorce Act as inconsistent with the 1995 Constitution of the Republic of Uganda. Specifically:
📍Section 4-Requires proof of grounds for divorce, which the Petitioners contend contravenes Articles 20, 21, 23, 24, 27, 29, 31, and 44 of the Constitution.
📍Section 5 -Requires naming a co-respondent, alleged to violate constitutional protections.
📍Sections 6, 7, 8, 30, and 33-Empower courts to inquire into marriages and regulate proceedings under the Civil Procedure Act, alleged to conflict with constitutional rights.
📍Sections 15, 16, and 18-Address judicial separation and protection orders, which Petitioners argue favor wives, creating unequal treatment contrary to Articles 20, 21, and 31(1) of the Constitution.
Court’s Determination on Amicus Curiae
The Applicants sought leave to intervene as Amicus Curiae to provide additional perspectives on:
📍Substantive equality versus formal equality in divorce remedies.
📍The need for legal certainty and avoidance of a lacuna if sections of the Divorce Act are struck down.
📍The court’s role in addressing past and ongoing gender discrimination and the utility of suspending orders of invalidity in constitutional litigation.
Key Findings of the Court
1. Demonstrable Expertise
The court acknowledged the Applicants’ substantial expertise in gender equality, gender-based violence, and matrimonial property disputes. It noted their prior involvement in landmark cases, including Constitutional Petition No. 2 of 2003.
2. Neutrality and Impartiality
The court found the Applicants to be impartial, emphasizing that being feminist advocacy groups does not undermine their objectivity. It rejected claims of bias, highlighting the Applicants’ constitutional mandate to defend human rights.
3. Novelty of the Points of Law
The Applicants raised novel legal issues, particularly regarding:
📍Substantive equality as a remedy.
📍The obligation of courts to ensure legal certainty.
📍The suspension of invalidity orders to avoid legal gaps.
4. Public Interest
The court recognized the public interest in the Applicants’ submissions, noting their potential to aid the development of jurisprudence on divorce remedies and constitutional interpretation.
We are of the view that the matters the Applicants seek to address are of public interest and are relevant to the court in formulating appropriate orders in the event that the particular provisions of the Divorce Act are found to be inconsistent with the Constitution. We are, however, mindful of the fact that the opinions of the amicus curiae are not binding on the court. It remains within the discretion of the court to decide whether to consider or disregard the submissions.
A perusal of the intended brief further shows that it is grounded in the law, does not amount to fresh evidence or a new cause of action, does not favor either party to the Petition, and may aid in the development of jurisprudence regarding the nature of reliefs courts can grant in matters of divorce.
Court Orders
The Constitutional Court ruled as follows:
📍The Applicants are granted leave to intervene as Amicus Curiae in Constitutional Petition No. 09 of 2022.
📍The joint amicus brief filed by the Applicants is adopted by the court.
📍Each party shall bear its own costs of this application.
Implications
The Applicants’ participation is expected to contribute to the development of Uganda’s jurisprudence on gender equality, judicial remedies, and constitutional compliance in divorce proceedings. Read the full case below https://ulii.org/akn/ug/judgment/ugcc/2024/26/eng@2024-12-12
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