I have addressed the aspect of consent in my resolution of issue (g) supra. I also addressed the
concept of equality in marriage during my resolution of issue (f) supra. In the circumstances, I
say nothing more in respect of issue (h). It has already been adequately addressed.
Issue (i).
The gist in this issue is whether the payment of bride price as a condition precedent to the
validity of a customary marriage and a refund of the bride price as a condition precedent to the
validity of a dissolution of such marriage are customs that are guaranteed by Art. 37 of the
Constitution.
I have already reproduced Article 37 of the Constitution elsewhere in this judgment. The Article
does not attempt to specify or list what customs or cultural practices it guarantees. It is a general
provision for the protection and guarantee of all lawful customs /cultures that are recognized and
accepted as such by the people of Uganda who cherish them. It follows therefore, in my view,
that if a custom is known to exist and it does not offend against any provision of the Constitution
or other laws of the land, then such a custom qualifies for the constitutional guarantee and
protection under Article 37 of the Constitution. I have already in this judgment considered and
accepted the justification and role of the custom of giving of bride wealth and I will not repeat it
here. Suffice it to say that what I have already stated in that regard applies to this issue with
equal force.
Conclusions.
As for the practice of demanding of a refund of the bride wealth, it is contended by the
respondent that it is for, among other things, avoiding unjust enrichment on the side of the bride
by keeping the bride wealth after the wife has been released from the marriage.
On the side of the bridegroom, according to the respondents, the giving of bride wealth keeps
him committed to the marriage and the scare of giving bride wealth each time a man marries a
wife deters him from contracting numerous customary marriages.
The petitioners’ main complaints are in essence the unfairness that may go with such refund such
as failure to take into account the wife’s contribution to the development of the home during the
marriage, or the inability of the wife to leave the marriages due to the lack of capacity by the
wife’s side to mobilize the bride wealth to effect the refund. This, keeps the wife in a relationship
she no longer desires to stay in. Of great concern also is the commercialization of bride wealth to
worrying levels with its adverse consequences.
These and other difficulties of failed marriages are, however, not the preserve of customary
marriages alone. All other forms of marriage, once they break up pose problems. What is
important is that there are laws that can be invoked to redress the grievances of an aggrieved
party. The Constitution itself commands in Article 31 (1) (b) the enjoyment of equal rights by
parties to a marriage at, during and at the dissolution of marriage. There are also other
provisions of the law including Articles 43 and50 of the Constitution and Penal laws that can be
called to the aid of an aggrieved party in the event of the collapse of such a marriage. Legislative
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