Consideration of evidence by the Court
Eight issues were agreed upon by the parties at the scheduling conferencing period. However, I
note that some of them overlap. I therefore, do not propose to strictly follow the order in which
they are set out but to the convenience of the court.
On the first issue, whether the petition discloses an issue for constitutional interpretation, the
answer is not hard to find. Article 137(3) is very clear on this issue.
Article 137(1) & (3) (a) & (b) of the Constitution provide:
(1) Any question as to the interpretation of this Constitution shall be determined by the
Court of Appeal sitting as the constitutional court.
(2) …
(3) A person who alleges that –
(a)
An Act of Parliament or any other law or anything in or done
under the authority of any law; or
(b)
Any act or omission by any person or authority, is inconsistent
with or in contravention of a provision of this Constitution, may petition the
constitutional court for a declaration to that effect, and for redress where
appropriate.
It was argued for the respondents that the term ‘bride price’ means different things in different
cultures of Uganda such that the Constitutional Court cannot make a uniform interpretation of
such a practice.
I concede that the practice of bride price being customary, unwritten, diffuse, and varied may be
difficult to ascertain. However, that alone cannot stop this Court from interpreting it. So the
answer to issue No. 1 is in the affirmative.
Regarding the second issue whether the payment of bride price before marriage and its refund
during divorce are customs judicially noticed and hence requiring no further proof in the instant
petition, it was vehemently argued for the respondents that the practice of paying bride price
being customary had to be proved in relation to a particular community where known or
practiced. Besides, to the respondents the custom of bride price means different things in
Uganda. I agree that custom must be proved where it is not judicially noticed in accordance with
Section 55 of the Evidence Act referred to by Mr. Rwakafuzi.
8
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