The Constitutional Court of Uganda And Women’s Right to Equality: The “Adultery Judgment”

On the 5th of April 2007, the Constitutional Court of Uganda handed down its judgment in the case of Law and Advocacy for Women in Uganda v Attorney General of Uganda. It declared unconstitutional section 154 of the Penal Code, which criminalized sexual relations between married women and men (whether the latter were married or not), but not sexual relations between married men and unmarried women. The Court found that this provision discriminated against women, thus conflicting with the Constitution’s provisions guaranteeing gender equality. The Court further ruled that several provisions of the Succession Act (which deals mainly with matters of inheritance) were unconstitutional for violating women’s right to equality because, among other things, they favoured male heirs over female heirs. Many Ugandans denounced the ruling because they interpreted it as legalizing adultery. This note analyzes the court’s judgment on these provisions and, drawing on South Africa’s constitutional jurisprudence, explores alternative avenues by which the Ugandan judiciary might have acted to reconcile impugned statutes with the Constitution. It is argued that such an approach could render the court less prone in future to the kind of public outrage manifested in April 2007.