bride price, again as a condition sine qua non, is inconsistent with and in contravention
Articles 21(1), (2), (3), 31(1), 24, 33(1) & (3) of the Constitution..
Secondly, the petitioners, as I understand them, have also alleged that some specific acts and
omissions done or omitted to be done during the observance of the custom of giving and
demanding a refund of bride price as a condition precedent to the validation of customary
marriages and their dissolution are inconsistent with and in contravention of Articles 21(1), (2),
(3), 31(1), 24, 33(1) & (3) of the Constitution.
The petitioners also seek this court’s declarations and redress as indicated above. The petition,
therefore, in my view, satisfies the criteria set out by the Supreme Court of Uganda in Ismail
Serugo Vs Kampala City Council and another, Constitutional Petition No.2 of 1998. See
alsoAttorney General Vs Major General David Tinyefuza, Constitutional Appeal No.1 of
1997, and R/O 133 Major General James Kazini Vs The Attorney General, Constitutional
Petition No.8 of 2009.
I therefore, find in the affirmative on issue (a).
Issue (b).
The gist in issue (b) is whether the payment of “bride price” before validation of a customary
marriage and the demand for a refund of the same to validate a dissolution of the marriage is a
custom that can be taken judicial notice of without the requirement of further proof.
The Parties’ submissions on issue (b).
In their evidence and the submissions of their counsel, the petitioners contend that the demand,
payment and refund of bride price in the circumstances described in the petition are matters of
customary law that should be taken judicial notice of without requiring any further proof.
The respondents do not agree. They contend that bride price as custom in the contraction and
dissolution of customary marriages as practiced in Uganda must be strictly proved in accordance
with the rules of proof of customary law. They also argue that no all encompassing definition of
bride price exists throughout the whole of Uganda. In the second respondent’s view, some local
words and terms relating to bride price payment and refund as a feature of customary marriages
have no English equivalents. He singles out the word ‘Okujuga’, in Kinyankole culture. He
contends that the words ‘bride price’ were coined by Europeans who were not knowledgeable in
matters of African customary law and practice.
Observations and background to the resolution of the remaining issues.
Before I go into the actual resolution of the remaining issues, I consider it appropriate to make
some observations and give a general background to my resolution of those issues.
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