Abstract.
This article explores the legal implications of bride price in Uganda and the significant role it does in validating a customary marriage, and appreciating the importance of Dowry (Mahr) as prerequisite for a valid Islamic Marriage, are there any differences? Are there any legal complications created based on the latest courts position on half-payment of bride-price can still amount to a valid customary marriage.
Introduction
The concept of bride-price is not a new phenomenon, different communities have a specific and a unique way they celebrate this “appreciation token”.
The Supreme Court gave a broader perspective of this celebration and its uniqueness in the case of Mifumi (U) Ltd & Anor Vs Attorney General & Anor (Constitutional Petition No. 12 of 2007), court took cognizant of the Uganda Law reform commission report at p. 72 that, “
that bride price varies from tribe to tribe, clan to clan and family to family depending on one’s economic status. That in Ankole, opinion leaders estimated it to consist, on average, of four heifers and some goats, and in Teso the number of cows used to range from 18-25 but after insurgency it stands at 2-7 heads of cattle and cash money. The report goes on to say that in Buganda, the mandatory items are kanzu (long white tunic for men) for the father-in-law, gomesi (dress) for mother-in-law, mwenge bigele (local brew), a cock which is given to the brother-in-law and “mutwalo” (a specified sum of money).”
The above detailed analysis is better as opposed to negative connotation from Hamilton, C.J, who defined it as just a mere wife purchase, this definition ridiculed an a cultural concept that created the complexity that is still existent to this day. On whether to pay or not to pay? Give or not to?
The Supreme Court defined it as “the voluntary exchange of gifts at marriage between the groom to be and his wife’s parents or relatives and vice versa.” As per Mifumi(U)ltd v AG &Anor (Constitutional Petition No. 12 of 2007),
The courts further held that Bride price is specified and later demanded as a condition precedent to formalization of the union or to get the parents’ blessing.
It is a token of appreciation for taking care of the woman being married. The additional declaration that the practice of refund of bride price at dissolution of a customary marriage is unconstitutional that was made in that case, diminished the significance of bride price as a determinant of the validity or the legality of customary marriages.
The 1995 Constitution provides for the enforcement of customary law which comprises of customary marriage thus anyone who wishes to get married under customary marriage ought to uphold the norms of such a marriage of which bride price is a key.
The practice of bride price was compulsory in the African tradition society until we had the Christian revolution that denounced it as a mere payment thus naming the girl child mere property thus creating the complexities we are still dealing with.
THE COMPLICATED SUBJECT CREATED BY THIS LEGAL PRECEDENCE.
The payment of bride price in Uganda was yet to be tested by the law until 1917 in the case of R v. Amkeyo (1952) 19 E.A.C.A the court invalidated a marriage validly contracted under African Customary Law on the basis that such a marriage was a wife purchase and repugnant to law. Hamilton, C.J held that,
“the elements of a so-called marriage by native customs differ so materially from the ordinarily accepted idea of what constitutes a civilized form of marriage, that it is difficult to compare the two.”
Though one can argue and state that since the learned Justice was a white judge determining the validity of a marriage celebrated by African customs, he had less knowledge about the celebration of an African Marriage thus arriving at such misconception that has since made it a complicated subject.
The case of R v Amkeyo was overruled in the case of Alai Vs Uganda [1967] E.A. 596 whereby Justice Udo Udoma interpreted the payment of bride price as mere appreciation not buying as it was being interpreted; he also defined a married woman to mean any woman married to any man irrespective of the form of marriage provided such form of marriage is recognized by the people of Uganda. And a customary marriage is among the forms of marriages recognized in Uganda. S.1 (b) of the customary marriages (Registration) Act, Cap 248.
He went on to stress that it were the Africans to understand and interpret their customs not the white who understood them less.
However, both the cases were received with mixed feelings where some subscribed to the first case and to the second case respectively.
The other test of law was is in the case of Mifumi(U) V AG & Anor where by the petitioners went to the court challenging the constitutionality of the customary practice of demand for and payment of bride price alleging that the price as a condition precedent to marriage and a demand for and payment of bride price as a condition to precedent to dissolution of marriage should be declared unconstitutional.
In this case the constitutional court dismissed the case on grounds that the term bride price was misinterpreted by the colonialists who didn't understand the custom and the court went on to term the custom as bride wealth.
That bride wealth was offered to the parents of the bride appreciating the efforts fro maintain and upbringing their daughter to the value of getting married.
With reference to the case of Mifumi(u) v AG Constitutional petittion No 12 of 2007,
Facts briefly are that,
Mifumi a Non-Government Organization petitioned the Constitutional Court challenging the constitutionality of the customary practice of demand for and payment of bride price alleging that the price as a condition precedent to marriage and a demand for and payment of bride price as a condition to precedent to dissolution of marriage.
They challenged on grounds that such an act of payment of bride price promotes inequality in marriage contrary to Art 21(1),(2) and (3) of the constitution.
They challenged its constitutionality on grounds that such an act of demand for bride price by parents of the bride as a condition precedent to marriage fetters the free consent of the man and the woman who intend to marry contrary to Art 31(3) of the constitution which demands that men and women shall be accorded equal rights in marriage and its dissolution.
Holding.
In dismissing the petition, the Honorable Justices led by Deputy Chief Justice Kikonyogo argued that the custom of payment of bride price is constitutional per-say. This is simply because this practice encourages a voluntary, mutual agreement between bride and groom to enter into the bride price arrangement as provided for under Art 31(3)of the constitution, marriage shall be entered into with the free consent of the man and woman intending to marry.
However, the honorable court interpreted the term bride price as being bride wealth given to the parents of the intending bride as a token of appreciation for raising the bride.
They went ahead to stress the fact that it was incumbent upon the parents to nurture their daughters in good shape for marriage.
Why men were to give in appreciation because parents encounter selfless efforts in shaping a girl child so it was upon the parents to keep the value of womanship in their daughters.
Nevertheless, they went ahead to challenge the petitioners that in case they were not ready to uphold the norms of customary marriage, they were free to practice the other forms of marriages provided in the marriage act, such as civil marriage, matrimonial marriage and other as long as they are legal in the Uganda legal system.
The repayment of bride price as a condition to precedent to dissolution of marriage was termed unconstitutional by the honorable court because it contravened free consent in marriage and equality.
It also depreciated the value of women to mere property.
Court dismissed the petition.
THE NOTION OF DOWRY (Mahr) ACCORDING TO THE MOHAMMEDIAN MARRIAGE (ISLAMIC MARRIAGES)
In Islam, payment of the gift “Mahar” is very important, the lack of which makes the marriage invalid.
A detailed explanation by Hon Justice Stephen Mubiru in Ayiko Mawa Solomon v Lekuru Annet Ayiko HC Arua, Divorce cause No.0001 of 2015, wherein court considered the key features of an Islamic marriage.
The facts briefly are;
In this case, the couple underwent an Islamic traditional Nikah on 14 February 2009 and continued to live together in Arua Municipality. Later, on 2nd December 2009, both underwent a civil marriage at the office of Chief Administrative officer of Arua. Their relationship went sour with each accusing the other of adulterous practices.
Hon. Justice Mubiru explained the nature of a Nikah ceremony in a detailed manners as follows:
I therefore, construe a Nikah as a valid Islamic traditional ceremony whose essential requirements are mutual (consent) agreement by the bride and the groom; presence of a legal guardian (wali) for the bride or his representative (wakeel); the presence of two adult and sane Muslim witness(asshuhud); who should be two males or one male and two female; and the payment of Mahr (marriage gift by the groom to the bride either immediately (muajjal) or deferred (muakhkhar), or a combination of both. (at 10).
The court relied on Section 2 of Marriage and Divorce of Mohammedan Act, Cap 252 and indicated that absence of a marriage certificate was inconsequential as regards the validity of such a marriage.
The Quran 4:4, the Mahr is given as a free gift by husband to the wife at the time of contracting the marriage. The settling of a dower on the woman at the marriage is obligatory, Quran 4:24 provides that you seek them in marriage with gift from your property deserving chastity not lust.
IS THE AMOUNT OF DOWER NECCESSARY?
A detailed explanation by learned author Muhamud Sewaya in his article Perspective on Muslim Marriages And Divorce Law In Uganda [1] he states that on the issue of the amount of Dower, there is no hard and fast rule that’s been specified by the Holy Quran about the amount of dower.
It is to be adjudged according to the social status of the parties, their wealth, their personal qualifications and the condition of the human society. Islam does not set rates and maximum or minimum limits for the dowry.
It depends on the circumstances of the time, place and society.
The amount of dower normally depend upon the circumstances of the husband and the position of the wife. Quran 2: 236 provides: the rich according to his means and the straitened according to his means.
The Mahr is to be paid by the husband or his representative to the wife or her representative at the time of solemnization in the presence of the two witnesses. Imam or the registrar has to ascertain the amount of the dower or any part of the dower or gifts which was agreed upon but not settled at the time of the solemnization, and the description of the security given for settling the dower.
The dower of Umm Habiba in marriage with Prophet Muhammad (S.A.W) was fixed at 4,000 dirhams. The Mahr of Prophet’s daughter, Fatima was 400 dirhams.[2]
There are three circumstances which make the payment of dower obligatory:
When after entering into the contract of marriage (nikah) the spouses had cohabited, it becomes obligatory upon the husband to make full payment of the dower amount.
When after entering into contract of marriage (nikah) the husband died. The widow shall get her dower amount before the distribution of the estate left behind by the deceased husband. It is not necessary that the spouses had cohabited before the death of the husband. To distribute the estate of the deceased husband before making payment of the dower debt to the widow is not permissible.
According to Imam Abu Hanifa and Imam Ahmad bin Hanbal, payment of dower become certain where the spouses (zaujayn) had full privacy and isolation without any apprehension of arrival in their apartment of anyone
With regard to the period when the dower is to be paid by the husband to the wife there are two kinds of dower.
One is that the dower (mahr mu`ajjal) the payment of which parties have agreed that it shall be paid promptly at the time of contracting.
The second one is the Deferred dower (mahr mu'ajjal): It is that dower where been the parties have agreed that it shall be paid after some period.
In the above article on page 31, the learned author gives a clear cut distinction between Mahr and Bride price.
IS THERE ANY DIFFERENCE BETWEEN DOWRY (MAHER) AND CUSTOMARY BRIDE PRICE?
A simple explanation is the Dowry (Maher) is given by the groom to the woman he intends to get married to whereas bride price culturally I given to the parents of the girl.
This difference has been also considered in the Tanzanian case of Salum Athumani v Mwamini Hamisi [1982] TZHC 15, wherein the wife brought suit against her husband for divorce on ground of cruelty. The two had been to the conciliation board and reconciliation failed. The lower court granted divorce. The lower court was of the view that according to Muslim law, no dowry was returnable whether the offending party was the husband.
Bahati J said that:
…according to Islamic law, dowry is paid to the wife unlike bride wealth in customary law which is paid to the father or other relative of the wife…In Islamic law the wife is absolutely entitled to the dowry as her own personal property. On the other hand, in African customary law the bride price goes not to the woman but to members of her family.
He further held that.
“Islamic law does not recognize bride price, but on the other hand I am not aware of any provisions which expressly forbids it. I see no reason, therefore, why bride price should not be paid under customary law at the time when an Islamic marriage takes place just as it frequently is on the celebration of an African Christian marriage.
Any question concerning bride price, however will be decided under customary law, since the matter is outside the sphere of Islamic law. Dowry is not returnable when there has been a consummation. The Position is even stronger where the husband has been found to be guilty[3]
The Legal Implications of Customary Marriages and The Complexity of Two Cases.
(The Mifumi case and Hellen Okello v Akello Ocan)
Customarily what amounts to a valid marriage was well stated by Lady Justice Eva K. Luswata in the case of Namukasa v Kakondere (DIVORCE CAUSE NO. 30 OF 2010) where she observed that, “It is now settled law in our courts that payment of the full bride price requested by the bride’s family is proof that a customary marriage has been celebrated between two parties, as also seen in the case of Aggrey Awori Vs Rosette Tagire HCCS 178/2000.
The principle of bride price therefore as considered in the cases of Mifumi (U) Limited & 12 Ors Vs. Attorney General and Anor (Constitutional Petition No. 12 of 2007) where Hon. Justice S.B.K Kavuma recognized that payment of bride price is widely practiced in Uganda.
The same view of customary marriage was recognized in the case of Nemezio Ayiiya Pet Vs. Sabina Onzia Ayiiya (Divorce Petition No. 8 of 1973) where court held that before all dowry is paid, a man and a woman cohabiting can be regarded as husband and wife but (the customary) marriage is not valid until all dowry is paid.
Furthermore, in Kimani v Gikanga court held that customs or traditions that are repugnant to public policy or natural justice, equity and good conscience will not be enforced.
Whereas in Uganda v Kato & Ors [1976] HCB 2004 Sekandi J held that the test for determining what a marriage is under customary law is whether a union is treated as a marriage by the law or customs of the nations, race or sects to which the parties belong and that the parties must satisfy all the requirements for marriage under the customary laws of a given community.
In the case of Stephen Bujara v Bujara (2005) 3 HCB 62, court held that a customary marriage is complete if customary practices of the community or tribe of the community have been complied with, or performed, or if it does not offend the provisions of section 11 of the customary Marriage Registration Act
Section 4 (2) provides that customary marriages are polygamous.
In the case of John Tom Kintu v Mileas Gafabusa Kintu HCD Appeel 135 of 1995 court stated that if a person is married under customary law and continues to marry more wives under the same type of marriage, he does not commit adultery.
DISTIGUISHING THE ABOVE HOLDING ON COMPULSORY PAYMENT OF BRIDE PRICE IN FULL.
The above position has since been distinguished by Justice Stephen Mubiru in the case of Hellen Okello Vs Akello Jennifer Ocan Civil Appeal 84 of 2018 [4] where he held that,
“The Constitution of the Republic of Uganda, 1995 to hold that partial payment of bride price is a ground for nullification of a customary marriage would be repugnant to natural justice, equity and good conscience.”
The facts briefly
Are that the appellant brought the matter to court appealing among other grounds on the validity of the customary marriage which the trial court found to be valid regardless of the non payment of the bride price in full, The respondent’s claim was that on 14th February, 2008 she married the late Ocan Benson under Lango customary law. During the subsistence of that marriage, they jointly acquired a plot of land measuring approximately 30 metres by 40 metres situated at Kabedo-opong village, Key “A” sub-ward, in Gulu district, from a one Nyero Jacob Pa’Labongo. The respondent and the late Ocan Benson then constructed a residential house on the said land which became their matrimonial home.
Ocan Benson died on 25th October, 2015 after a long illness. Following the death of the late Ocan Benson, the appellant, who is the mother of the deceased, had on multiple occasions broken open padlocks placed by the respondent on the said premises and replaced them with hers, with intentions of forcefully taking over and occupying the said property.
The appellant contended that the process of the respondent’s marriage to the late Ocan Benson was commenced but was never completed. It therefore was not a customary marriage under the law. The respondent only forged a marriage certificate to enable her secure employment with the non-governmental organization, “World Vision.”
On whether there existed a valid customary marriage?
Justice Stephen Mubiru held as follows; Following the promulgation of The Constitution of the Republic of Uganda, 1995 to hold that partial payment of bride price is a ground for nullification of a customary marriage would be repugnant to natural justice, equity and good conscience, in that it would connote that marriage gifts are a price paid for the bride, in a purchase-and-sale transaction, thus reducing customary marriages to an arrangement of wife purchase.
The notions of justice and equality of spouses in marital relations, as dictated by the current legal system, especially under article 33 (6) of The Constitution of the Republic of Uganda, 1995 that prohibits customs or traditions which are against the dignity, welfare or interest of women or which undermine their status, militate against a result that elevates marriage gifts to a role that lowers the status of women within the institution of marriage, as a purchase of the groom
Court’s position on Cohabitation.
In the above case, Hellen Okello Vs Akello Jennifer Ocan (Supra) Justice Stephen Mubiru held as follows;
That cohabitation alone is not sufficient to constitute a customary marriage, celebration and / or blessing of the union in a manner that treats it as a marriage by the customs of the respective families to which the parties belong, followed by cohabitation as a result of the blessing of that relationship, is sufficient evidence of the existence of a customary marriage.
The customs of the families determine the formalities by which the woman is handed over to the man’s family, which handing over may include but not necessarily be accompanied by celebration (wedding). Financial constraints may sometimes result in such ceremonies being postponed or waived altogether. Where the parties belong to same tribe, the law of that tribe applies.
Where they belong to different tribes it is the law the parties intended to govern their relationship that will govern (see Nassanga Allen v. Nanyonga M. [1977] HCB 319 and Massa Samwiri v. Rose Achen [1978] HCB 297). It was not shown that under either Acholi or Lango customary law, the validity of the marriage is dependent on full, payment of the brie price. Even if that were the case, the custom would be invalid for repugnancy.
Does Part Payment of Bride-Price Amounts to a Valid Customary Marriage Now?
In the above case, (Hellen Okello Vs Akello Jennifer Ocan (Supra) Justice Stephen Mubiru observed as follows;
In any event, the payment of bride price, dowry or marriage gifts known by any other name in kind or cash, important as it may be from a ceremonial and ritual point of view, can no longer be regarded as an essential legal requirement for a valid customary marriage, though it remains an element intrinsically linked to a customary marriage. Not being an essential requirement, as long as there is agreement that it will be paid, it need not be paid in full.
Payment of that token of appreciation for the blessing of the union has only probative significance since it serves as additional proof of consent by the parties’ respective families given to the customary union.
Consequently, part payment is sufficient to constitute a customary marriage and the non-payment of the balance is not decisive of the ultimate question, as to whether a valid customary marriage was negotiated or concluded and that in pursuance of such negotiations bride price was fixed.
He further held that
In the instant case, the respondent’s union with the deceased met the essential requirements of a customary marriage, viz: both parties were of marriageable age, both parties consented to the marriage, the appointment of messenger(s) or spokespersons, the visit by the groom’s family to the bride’s family, the negotiation on the bride price to be paid, the payment of bride price or part of it, and the handing over of the bride.
Their marriage was negotiated, celebrated and entered into in accordance with customary law. The trial court therefore came to the right conclusion when it found that she is a widow of the deceased.
Conclusion
In a nutshell, regardful of the above analysis, it is incumbent to appreciate the idea of bride wealth because it is nurtures a girl child into a woman of value that not all men can pursue her on her mere looks but the value in the kind of woman.
Conclusively, I will go on to take the advice of the constitutional court in the case of Mifumi(u) v AG & Anor where he challenged all those who wished not to value bride wealth as to take up other forms of marriage such as civil marriage, matrimonial marriage
Without ignoring the latest insights by Justice Stephen Mubiru in the case of Hellen Okello Vs Akello Jennifer Ocan in which court observes the intention of the parties and Financial constraints may sometimes result in such ceremonies being postponed or waived altogether. Where the parties belong to same tribe, the law of that tribe applies. However, part payment is sufficient to constitute a customary marriage and the non-payment of the balance is not decisive of the ultimate question, as to whether a valid customary marriage was negotiated or concluded and that in pursuance of such negotiations bride price was fixed.
This means that tradition of appreciation token “Bride Price” under customary marriage is still very significant in validating a customary marriage and lately, even part-payment of bride-price still makes the customary marriage valid.
By
Waboga David
Disclaimer This write-up is general knowledge and strictly for academic purposes.
For any inquiries. wabogadavid@gmail.com
REFERENCE.
[1] LECTURE DELIVERED TO THE POSTGRADUATE BAR COURSE STUDENTS LAW DEVELOPMENT CENTRE 18 th MARCH 2022
[2] Mohammad Iqbal Siddiqi, The Family Law of Islam 1994, 82.
[3] (1983) TLR 107 HC TZ at 110
[4] Read full case below
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