THE UNRESOLVED QUESTION ON THE PAYMENT OF BRIDE PRICE IN UGANDA
BY
RWAMBALE DOUGLAUS
LLB/41425/91/DU
A RESEARCH DISSERTATION SUBMITED TO THE SCHOOL OF LAW IN PARTIAL
FULFILMENT FOR THE REQUIREMENT OF THE A WARD OF BACHELORS
DEGREE IN LAWS OF I(AMPALA INTERNATIONAL UNIVERSITY
JULY,2013 DECLARATION
I RwambaleDouglaus to the best of my knowledge declare that th~ ,work presented in this dissertation is a result of my own independent research effort and investigation. It has never been submitted to any other institution ofhigher learning for an award.
Signature ...~~~~~ ...... Date .... 9.:?.. ~ .T. \.~ \~. ....
..
.. I '
APPROVAL
This research dissertation titled "The unresolved question on the payment of bride price in Uganda" prepared and submitted in partial fulfillment of the requirements of the award of Bachelor oflaw of Kampala International University is hereby submitted for approval by;
Signed... ~ ...... ' Mr. MUNDAANI ROBERT
Research supervisy.r , ' Date ...... 8:-..C jJl:t/J.3 ......
ii DEDICATION
I dedicate this work to my dear parents the Right Reverend Bishop Hannington Bahemuka and his queen Madam Bahemuka B Zebia who has always prayed for me to be successful, my brothers and relatives, without forgetting my only grandmother Edronah Kabahindi who discovered my talent and encouraged me to study law. I further dedicate this work to all my class mates and my friends especially Ssematiko John who has always discussed for me till the end of the course. Finally, dedicate this work to my beloved brother Reverend canon Bandirana Timothy for all the suppmt he rendered towards my success.
iii ACKNOWLEDGEMENT
I would like to express my heartfelt gratitude to the Almighty God, whose sufficient providence and protection towards the completion of this work was unlimited. Great thanks to my beloved parents the Right Reverend Bishop Hannington Bahemuka and Madam Queen Zebia for the love, financial and moral support given to me during my studies. May the Almighty God reward you abundantly. I would like to acknowledge my fellow students/colleagues for all the support and advise especially the LLB class of2009/2013. May God bless you all. I take this opportunity to thank my best friend Nampijja M A1met for all the prayers, assistance rendered to me towards the success of this work. May God reward you abundantly.
iv LIST OF STATUTES
MalTiage Act, cap 251
Customary MalTiage Registration Act, cap 246
Divorce Act, cap 249
The Marriage of Africans Act, cap 253
The Hindu Man·iage and Divorce Act, cap 250
The marriage and divorce of Mohammedans Act, cap 252
The Children's Act cap 59
The successio11 Act cap 162
The Constitution of the Republic Of Uganda 1995 (as amended)
v TABLE OF CONTENTS
DECLARATION ...... i
APPROVAL ...... ii DEDICATION ...... iii ACKNOWLEDGEMENT ...... iv List of statutes ...... v
ABSTRACT ...... viii
CHAPTER ONE ...... 1
THE GENARAL INTRODUCTION ...... 1 1.0 Introduction ...... 1 1.1 BACKGROUND OF THE STUDY ...... ·.: ...... 3 1.2 STATEMENT OF THE PROBLEM ...... 3 1.3 SIGNIFICANCE OF THE STUDY ...... 4 1.4 SCOPE OF THE STUDY ...... 4 1.5 LITERATURE REVIEW ...... S
1.6 METHODOLOGY ...... 11
1.7 SYNOPSIS ...... 11 CHAPTER TW0 ...... 12 2.0 Introduction ...... 12 2.1 HISTORICAL CONTEXT...... 12 2.2 MARRIAGE AND BRIDE PRICE ...... 12 2.3 Arguments for Bride-price ...... 21 2.4 ARGUMENTS AGAINST ...... 22 2.5 NATURE OF PAYMENT OF BRIDE PRICE ...... 24 2.6 BRIDE PRICE AND DOWRY ...... 25 CHAPTER THREEE ...... 26 THE LEGAL POSITION OF BRIDE PRICE IN UGANDA ...... 26 3.0 Introduction ...... 26 3.1 THE CURRENT LEGAL POSITION OF BRIDE PRICE ...... 28 3.2 THE FUNCTION OF BRIDE PRICE ...... 29 3.3 THE SOCIETY AND BRIDE PRICE ...... 32
Vi 3.4 UNDERSTANDING THE PROCESS OF BRIDE PRICE ...... 33 3.5 CHANGES IN BRIDE PRICE OVER TIME ...... 35 CHAPTERFOUR ...... 36 PROBLEMS ASSOCIATED WITH BRIDE PRICE ...... 37 4.0 Introduction ...... 37 4.1 THE QUESTION OF PROHIBITION AND CONTROL OF BRIDE PRICE ...... 39 4.2 Evaluation ...... 40 4.3 Enforcement mechanism ...... 43 CHAPTER FIVE ...... :.: ...... 44 RESEARCH FINDINGS AND RECOMMENDATIONS ...... 44 5.0 Introduction ...... 44 5.1 HISTORICAL AND THEORETICAL CONTEXT OF BRIDE PRICE ...... 44 5.2 CUSTOM AND TRADITION ...... 46 5.3 POSITIVE AND NEGATIVE IMPACTS OF BRIDE-PRICE ...... 47 5.3.1 POSITIVE IMPACTS OF BRIDE-PRICE ...... 47 5.3.2 NEGATIVE IMPACTS OF BRIDE-PRICE ...... 49 5.4 BRIDE-PRICE VIS -A- VIS DOMESTIC VIOLENCE ...... 51 5.5 CASE STUDY ...... 51 5.6 ARE BRIDE-PRICE AND POVERTY CONNECTED? ...... 55 5.7 REAL-LIFE EXAMPLES OF THE IMPACTS OF BRIDE-PRICE PROVIDED BY THE RESEARCH ...... 58 5.8 RECOMMENDATIONS ...... 59 5.8.1 Legal Reforms ...... 64 5.8.2 Advocacy Campaigns ...... 65 5.9 CONCLUSION ...... 66 REFERENCES ...... 66
vii ABSTRACT
Historically, gift exchange has been an important integral part of marriage rites and ceremonies in African culture. It involves exchange of materials or money from the man's to the woman's household, but practices differ between communities. In most, it is men folk who participate in discussions that determine what, how much and how such a paym~~t is made.
The payment of bride price is a common practice in African countries, whereby material goods or money are paid by a groom to a bride's family upon their maniage, bride-price operated beneficially in the past to give fmmal recognition to marriages and to stabilize partnerships.
It can take the form of a sum of money, land, livestock or other assets given to the family of a bride in some cultures it is also referred to as bride wealth. The tradition of a bride price was connnon in many cultures, including early Biblical societies, and it continues to endure in some nations around the world, including Uganda, often in a token form. The tradition of a bride price might seem archaic to some people, while others believe that it served and continues to serve some valuable functions in the cultures where the tradition is used. In the first place, it associates value with women and brides by forcing grooms and their families to give something up to marry a desired woman. In some cultures, the bride pricewas also intended to compensate for the loss of a valuable female worker around the house. In addition, establishing a bride price may be an impmiant part of religious expression and traditional marriage negotiations.
viii 1.1 BACKGROUND OF THE STUDY In the recent past, bride-price appears to have become a commercialised practice which is losing its former helpful role. This research is geared towards examining the legal regime of bride price and how it can best be reformed to reflect the question of gender equality and equality in marriage as envisaged by the Ugandan constitution. 6
Undeniably, the traditional value of bride-price is now less . dear due to the impacts of modernisation and the resulting commercialisation of social customs in contemporary times
Bride price has become so commercial now that it is like the girl's parents are selling off their daughters in order to become richer or to escape poverty. Every parent wants their daughter to get matTied so they can benefit from her. 7
It is not right to put human beings on the commercial market, bargain for them and, when one is fed up with them, dump them, leaving the woman psychologically tortured. Women lose their dignity, have to do endless hard labour - and then failure to produce children becomes a big crime -- once you have been paid for. 8
It has been argued that the subservient position of the wife is ,often made worse and greater inequality is therefore frequently caused by the payment of bride-price. 9
It is therefore the intention of the research study to examine the background of bride price and its development to the present time.
1.2 STATEMENT OF THE PROBLEM The question of bride price has been a thorny issue in Uganda in the recent past.Nevertheless bride price is not specifically provided for in the statutes thus creating an ambiguity on the laws governing it. The law governing the payment of bride price is still lacking in that a lot of questions still arise and more related challenges are encountered day by day with a few applicable laws need a lot of concentration to be coordinated towards making a better and firm law to regulate the payment.
6 Article 31 of the 1995 constitution of the Republic of Uganda (as amended) 'Professor Gill Hague, Bride-Price, Poverty and Domestic Violence in Uganda July 2009 8 ibid 9 ibid
3 Nevertheless, the bride price laws, policies, and regulations that are in place and these help a lot in the effectiveness of payment of bride price, the law becomes inadequate.
This is to the effect that "It is admitted that there is no perfect law, law is always subject to change as conditions in society change. But if at any time, any law is out of step with the conditions and needs of society in which it is meant to serve, then the law is only in theory and book."
It is in this light that I seek to examine the legal position of bride price in Uganda and see its impact in society with a view of understanding its success and failures and make necessary recommendations.
1.3 SIGNIFICANCE OF THE STUDY The findings of this study will help in resolving the contentious issue of bride price in Uganda.
This study is designed to benefit individuals and organisations that are involved in gender issues especially on issues of payment of bride price in traditional customary maJTiages. The study once accomplished may be a benefit to the lawmakers, implementers, academicians, and researchers as well as all stakeholders in Uganda and the world at large. This is expected to contribute towards the improvement of the law governing the customary values involved with bride price in order to give a clear perception of bride price its impacts, success among others in Uganda and as such will be able to provide appropriate recommendations accruing thereto. The study will help the researcher to gain understanding of bride price through its forms and how to intervene since it is a day to day practice in our communities which is important to him as a future lav.;,er or to his caJTier.
1.4 SCOPE OF THE STUDY The researchwill cover the CUJTent state of affairs regarding payment of bride price in Uganda.
Time period of the study will be from pre-colonial Uganda society to date.
The geographical area to be covered during my research is the country of Uganda. The paper considered a general overview of the impacts, success, failures of bride price and the laws accruing thereto in Uganda. It further focused on the customary values that are attached with bride price and the loopholes therein that need to be bridged. This paper further went to the root
4 of the extent to examine the legality of the existing regulations, policies and laws. It highlighted on the challenges to incorporate bride price with its elaborate features as a legally acceptable custom/practice in Uganda.
1.5 LITERATURE REVIEW It is my intention to make a critical analysis of the existing literature concerning payment of bride price in Uganda.
It is my sincere hope that my research work will add substantial value to the existing literature on the subject matter and help in resolving the contentious issue of payment of bride price in Uganda.
The practice of Bride Price is an age old practice dating as far back as ancient times. In the Bible the most notable recording then being in the Book of Genesis where Jacob seeking the hand of Rachel pledges to serve her father for seven years in return for Rachel's hand in marriage. This is perhaps one of the earliest recordings of a practice that has evolved throughout time and exe1ted influence on customary practices on marriage the world over.
Closer to home, the practice of bride price has always featured as a significant part of African customary practices surrounding marriage and it would appear that it plays both symbolic and economic functions in the community in which it is practiced.
The symbolic functions of the practice include the payment, .of bride pnce as a sign of appreciation to the parents of the bride and also to signify a bond that ties the two families together. Its economic functions assume an imp01tant role in the distribution of property and this is characterized by the intended groom providing to the parents of the girl a substantial amount of money and/ or goods before the marriage can be contracted.
If a marriage is not successful, the Bride Price will be returned, it is a fu1iher indication that marriage is primarily seen as the alliance of families rather than an interpersonal commitment based on love. Man1age is cemented by the bride wealth, giving a large number of the bride's family a material stake in the perseverance of the marriage, a form of marital insurance.
Uganda is typically a patriarchal society and the element of masculinity is deeply entrenched in the cultural practices of Ugandan communities. Thus men from the Ugandan ethnic communities
5 not only define themselves as the dominantsex, but also in terms of the norm of seeing that women merely exist for their use10 In the voice of a Ugandan woman who recounts the advice she got from her mother prior to maniage: respect him (her husband) and dowhat he wants lest he demands back the bride-price that had been paid.
There is thus every reason to believe that the Ugandan society has socialized the male to think of 11 females not only as subordinates, but also as their instruments .
Bride price payments have been interpreted in numerous ways. In many cases, groups justify the practice by claiming that the wealth received compensates them for time and trouble taken to raise a daughter who will be sent off to live with another family. In others, it is viewed as compensation for the loss of a daughter's economic services or for the children she adds to her new family.
For example, among the Daniof New Guinea 12 three separate conjugal assets are recognized in transactions that are separated in time. A man must make giftsof special valuables, such as pigs, shells, or stones to his wife's family when:
1. He first contracts a maniage and his bride stmis working on his farm, 2. He acquires sexual rights over his wife and consummates the m~iage, and 3. His wife be:lrs a child.
13 Among the Igbo ofNigeria , the bride price is more nanowly thought of as a payment to acquire rights in the children of the marriage and must be returned if a woman is barren or leaves the marriage before producing children.
Among tribes like the Nuer, Turkana, and Maasai, 14bonowing to make up the agreed upon bride price puts the groom indebt to his older male relatives for many years. The bride's father usually disburses the. payment in turn as bride price for his sons and nephews. As a result, the community's wealth is circulated. Among these tribes, the bride's family has a strong economic '.
10(Davison, 1989) Oxford University Press at page 16 11 ibid 12 ibid 130jogbo 0. Marriage and Custom in Nigeria- 1" Ed 1988. "(Davison, 1989) Oxford University Press
6 interest in keeping her marriage together because a divorce would require the return of the bride price, which often has already been given away to relatives. If there are children, however, the bride price usually does not have to be returned, but they belong to the groom's family. He keeps the children instead of the bride price.
In a sense, the bride price becomes a payment for children and, therefore, has also been referred to as "progeny price". 15Bride price was always relatively high among the Gusii, as indeed it was for many other agricultural Bantu-speakers(somewhat ironically, seeing as they had much less livestock to exchange than the cattle-herding for example, who had and still have very low bride price).
The phenomenon was in part caused by the equivalent of an inflationary spiral: in a society where cattle were both prestige goods and ill-adapted to the wet and hilly environment, where every father feared being left in the lurch by finding that the bride wealth which he had accepted for his daughter would not suffice to get him a daughter-in-law i~ turn; therefore he was always on the lookout for any signs of a rise in the rate, and tended to raise his demands whenever he heard of other fathers doing so.
One highly contentious result of this, according to the North American anthropologist Robeti 16 Levine , was two famous mass outbreaks of rape in Gusii-land in Kenya, in 1937 and 1950.
According to his research, the bride price in both those years had soared beyond the reach of young Gusiimen. There have been articles published which also suggest that amongst the Kisii community there was a practice of"marriage by abduction·'.
Academics describe marriage by abduction as the practice whereby a man takes a woman by force, rapes her and then attempts to use the stigma of rape and, sJ:t~mld she become pregnant, the shame of pregnancy to secure their marriage
An article in the Journal of African History by BrettShadle of the University of Mississippi indicates that the practice occurs when a man cmmot afford the required bride price, a payment made by the husband to the wife's family in order to establish a marriage. 17
15 Dennis O'neil- Marriage Rules Part II 16(Journal of African History 2003, 242 n2; Associate Professor22 Sept. 2003
7 '' Shadle's research shows that, historically, marriage by abduction occurred among the Gusii in Kenya in the 1890s, 1940s, 1950s and 1960s (Journal ofAfrican History 2003, 245-248). During these periods, the bride price rose to heights unattainable by most men as a result of drastic changes within the economy. 18
In October 2008 the Tororo District Council repealed a repressive law legalizing the payment of bride price and replaced it with the new District Bridal Gift Ordinance. The ordinance, which makes bride price payments optional and removes requirements for repayment of dowry if a marriage is dissolved, was one of several major measures nndertaken during the year to outlaw repressive dowry laws.
According to the October 2008 the Tororo district council repealed the law legalizing the payment of bride price, replacing it with the new district bridal gift ordinance which makes bride price payment optional. This research is not enough since it is outdated, and secondly still makes bride price payment questionable since the ordinance ignores the cultural values attached with bride price payment by making it optional. Hence this research in order to answer that question.
In India today, the failure to pay all the agreed upon dowry amount is considered a serious problem; The most severe is "bride burning"; the burning of women whose dowry was not considered sufficient by their husband or in-laws. The death of his "failed" wife allows him to many again and to obtain the dowry that his family believes he deserves and demands for dowry can go on for years.
In India today, the failure to pay all the agreed upon dowry leads to the burning of the bride, however in Uganda such an act of taking away someone's life violets Articles 20,22 and 24 of the constitntion of the Republic of Uganda 1995 (as amended), and this calls for a study to be catTied out in Uganda.
In 2001 research done in Kampala (Uganda) randomly sampled 300 followers of different faiths and asked
17.(2003, 242 n2;- Excerpt from issue papers and extended responses (KEN 41968.E from the Immigration and Refugee Board of Canada)
18 ibid
8 Them, whether or not religions should detennine bride price? Eighty-six percent of the respondents
Answered 'Yes'; fourteen percent of the respondents answered 'No'. The same respondents were asked:
Whether or not to abolish bride price? Eighty eight percent of the respondents answered 'No' rather, it should
Be reformed; Twelve percent of the respondents answered 'Yes, since it is unfair to women.
According to the research catTied out in Kampala (Uganda) in 2001, randomly sampled 300 followers of different faiths and asked them whether or not religions should dete1mine bride price?, but this research can't be relied on since it left out the non believers (pagans), the 300 followers randomly sampled it is not clearly shown that they where Ugandans only or not and it was done in Kampala only, however this research will be carried out in Uganda generally.
Today, however the practice appears to have become commercialized and to have lost much of its traditional values in many instances, bride price can appear to be the buying of a wife as a commodity, which can result in abuse towards a woman if she does not fulfill her "value" or if . ' she attempts to leave and the bride price cannot be repaid (Matembe, 2004: Ndira, 2004).
The practice of commercializing bride price payment appearing to be the buying of a wife as a commodity, the traditional values meant to appreciate the works that the woman could do at the groom's family, hence calling for further research to be carried out to establish this in Uganda.
The practice of bride price has different names in different countries and regions of Africa. In South Africa for example, it is often known as Lobola and recent writings has linked it to issues of inequality between men and women and especially to control over reproductive rights (WLSA, 2002).
In recent years, the issues involved in the practice of bride price have begun to be brought to the '' fore and awareness has been increasing in Uganda. Example, the 2005 Uganda Poverty Eradication Action Plan highlighted bride price as the most significant factor holding back women's empowerment (2005: 19).
9 The research that was carried out in 2005 by the Uganda poverty Eradication Action plan, shouldn't be a research to rely upon to outlaw payment of bride price or declare the practice unconstitutional since the research forgot the provision of Articles 32 (I) and 33 (I), (4), (5), and
(6) of the constitution of the republic of Uganda 1995 (as amended),. which provides for Affirmative action in favor of marginalized groups and the Rights of women, thus a need to carry out a new research that can best sensitize the people of Uganda on their constitutional rights. This was a right provided on the 22th September 1995, the day the constitution was adopted. Therefore from this date to 2005 when this research was carried out in Uganda bride price could not be highlight as the most significant factor holding back women's empowennent.
In the last few years, there have been demonstrations against bride price in mral Uganda. Bride price reforms or abolition has began to be an issue for legislative change in some countries (Macdonald-Levy and Macmillan 2005), but there is little existing systematic evidence on which to base these reforms.
From the demonstrations against bride price in rural Uganda in the last few years, this calls for an in depth research on the umesolved question on the payment of bride price in Uganda such that the legislatures and other stakeholders can come up with a clear law governing the practice of bride price in Uganda.
If marriage is not successful, the bride price is always returned, it is a further indication that marriage is primarily seen as the alliance of families rather than an interpersonal commitment based on love. Marriage is cemented by the bride wealth giving a large number of the bride's family a matetial stake in the perseverance of the marriage, a form of marital insurance.
Among the Igbo, the bride price is more narrowly thought of as the payment to acquire in the children of the maniage and must be returned if the woman is. barren or leaves the marriage before producing children.
This research among the Igbo way of understanding bride price gives a wrong picture on the notms and cultural values that our ancestors had on the practice and to a country like Uganda there is need for a research to give a clear picture of what is the purpose of paying bride price.
10 1.6 METHODOLOGY It is my intention to use the existing available literature on the subject matter to assess the cunent and past legal status on payment of bride price. These include books on bride price, Reports on bride price, newspaper reports, , internet, Radio reports from the groundconcerning, I also intend as the researcher to question different people (respondents) who have been involved in matters of bride price as either parties or fellow researchers so as to gain substantial knowledge on the subject matter and thus make factual contributions that will help resolve this contentious issue.
1.7 SYNOPSIS The study will be divided in five chapters. The first section of dissertation contains the proposed content of generally introduction, statement of the problem, objectives of the study, methodology, literature review, and significance of the study, scope, and synopsis. Chapter one discusses the concept of bride price at large; its revolution and how it has grown to be assimilated in by the various communities in Uganda.Chapter two discusses the History, Man·iage; the Family; and Bride Price in U gandaChapter three g1ves an analysis on Legal Regime and Other Factors Governing Payment of Bride Price in Uganda.Chapter four discussedthe effects of payment of bride price in customary maniages in Uganda. Chapter five givesthe Recommendations and Concluding Remarks Regarding the Unresolved Questionon Payment of Bride Price in Uganda.
11 CHAPTER TWO
2.0 Introduction The chapter drscusses the status of bride price in Uganda, marriage, the family and bride price, and among these concepts the effect of bride pride is paramount.
2.1 HISTORICAL CONTEXT THE HISTORY OF BRIDE PRICE IN UGANDA
Thehistory of bride price in Uganda is one of a sacred custom which has been a valued practice across the cultural divide and which has also aided communities and promoted social cohesiveness and hatmony throughout remembered history.
Bride-price cemented families together in the pre-Colonial period and had not been regarded in acquisitive terms as a 'price', but as a custom to build and strengthen communities and families. 19
In the colonial-period, the practice was not well understood by the Colonial powers that may have inadvertently aggravated its negative aspects through attempts to regulate it. For example, this was tl1e case in the 1964 Bukedi bye-law passed at the end of the Colonial era in Tororo District which. attempted to limit the amount of goods given. This attempt to legislate a maximum amount had the opposite effect, rather than reducing bride-price demands, it led instead to the institutionalisation of this maximum as the amount that was always expected to be given. This has gradually become accepted in the cultural marriage practices used in the area.20
2.2 MARRIAGE AND BRIDE PRICE A family is a social unit usually consisting of a male and female adult living in one household and eating for their children?1
" "Professor Gill Hague, Bride-Price, Poverty and Domestic Violence in Uganda July 2009
20 ibid 211 Dictionary of law by L.B.CURZON 5TH Edition pg 153
12 A family is an important unit of society. It is an institution as old as mankind with significant roles of procreation, socialization and other forms of community support. It is constituted by at least two people whose relationship may fall in one of the following categories; husband and wife or two people living together as if they were spouses, a parent. living with one or more children or even other persons related by blood or marriage. 22
23 The constitution of Uganda provides for maniage under Article 31 the Rights of the family : Men and women of the age of eighteen years and above have the right to many and to found a family and are entitled to equal rights in maniage, during marriage and at its dissolution. Further that Maniage shall be entered into with the free consent of the man and woman intending to many.24
Man·iage is a state where by two parties Agree to enter into a relationship bound with obligation and mutual rights imposed on themselves and legally enforceable.25Marriage can also be between two people affecting the status of each other imposing rights and obligations of a special kind. 26Marriage was defined in the leading case of HYDE VHYDt!27"as the voluntary union for life of one man and one woman to the exclusion of all others." This promotes Christian marriages and it is in Christendom.
The family laws in Uganda are governed by the maniage Act, customary maniage registration Act, Divorce Act, the matTiage of Afi-icans Act, the Hindu marriage and divorce Act, the Mohammeda11 Act, the Children's Act and the constitution of the republic of Uganda atnong others. There various legal concerns affecting family marriages. It should be noted that in the family band in marriage individual and group rights are recognized and also respected.
221 Ciass notes by Mr. Kakooza 2007 23 Article 31 (1) of the 1995 constitution of the Republic of Uganda (as amended) 24 Article 31(3) of the 1995 constitution of the Republic of Uganda (a& amended) 25Bromleys family law g'" edition by Butterworthspg 1 261 David Baker,Collin .P. Law 10 edition Oxford University press 27 HYDE VS HYDE AND WOODMANSEE (1866)L.R.IP and D pg 130
13 The first controversy is that of divorce, there has always been a gap, sometimes narrower between the letter of the law and the means by which spouses and their legal advisers use or sidestep in terms to achieve their objective of ending the marriage tie. The doctrine of indissolubility of marriage was accepted by the English ecclesiastical courts after the reformation, so that these courts had no power to pronounce a decree of divorce which would pe1mit the pmties to remarry?8
The divorce Act in section 4(1) as then was until it was taken to the constitutional court to be restructnred in the constitution, if his wife has been guilty of adultery while in order for a wife to petition court to dissolve a marriage, she must prove adultery in addition to another offence such as incest, bigamy etc. this section is also inconsistent with Article 21 (2) of the 1995 Constitution which states that, "a person shall not be discriminated on grounds of sex." and it was seen in the 29 case of UGANDA ASSOCIATION OF WOMEN LAWYERS V ATTORNEYGENER..A.L , Twinomujuni,J.A in disapproval of the section said that this mmTiages celebrated or given according to the rites and observances of the Mohammedan religion custommy and usual among the tribe or sect in which the maniage or divorce takes place shall be valid and registered, the law is concerned about divorce, so that a spouse as an individual who was not comfortable with her/his man·iage could dissolve it legally. The divorce Act denies the women petition to divorce unless they have satisfied certain conditions, thus being inconsistent \Vith the constitution of the republic of Uganda. Article 31(1) which provides that, " ... men and women m·e entitled to the same equal rights in marriage and at its dissolution." As in the case of KASASA V KASASA30 where court held that failure to prove adultery is enough to dis111iss the petition without going into the question of cruelty since the two have to be proved in order for a wife to succeed this shows equality of both men and women.
There are numerous legislations governing the vanous marriages broadly set out the requirements demand of parties wishing to contract a maniage. Although the statutory provisions of such requirements are Cleary set out in the maniage Act, the Hindu maniage and also the
281 supra above at 3 29 Constitutional petition No. 2 of 2003
30 [1976] HCB 348
14 divorce Act for the civil and Hindu marnages, the provisions relating to customary, Mohammedan and church marriages are not a adequately set out in the respective laws, thus opposite sex maniage and not same sex maniage. Therefore the law does not encourage gay maniages.
The age at the first maniage is the legal concern, it refers to the age when a girl or boy or first enters into a marital union. This varies from place to place but over the years it has been noted that many adolescents especially girls are getting married at a very tender age. This has caused public concern. Aliicle 31 of the Constitution it provides a right to both men and women at the age of 18 and above to marry according to this Article that maniage must be between people of opposite sex.
As in the case of KANJI NARANJI LAKHANI V SALIM MOHAMED BIN NAME31 the judge mled in favor of the constitutional age. It was held that the meager evidence advanced by the defendant was insufficient to satisfy the court that at the material time he was under 18 years of age, now the controversy arises from the various laws of marriage which prescribe a different minimum age of maniage .Civil and Christian maniage under the man·iage Act give 21 years imd above but also allow maniages below that age with parental consent. The customary nian·iages act gives 16 and 18 years respectively for females and males. the Hindu Man·iage and Divorce Act, similarly requires a bridegroom to be above 18yeais or the bride must be over 16 years, as a result of the above no unifmm age exists under the cunent laws this is' further complicated by the Penal code which makes 18 the age of consent to sexual intercourse, and prohibits sexual intercourse below the age of 18 years. The lack of a uniform minimum age and the controversies between the various matTiage ages reduces the legal protection to minor females who will be forced to engage in marriage at a tender age therefore the Constitution should prevail and emphasize should be put on the fact that men and women are equal before the law. Hither to above the law is concerned about consent of the parties to the marriage. This is · seen in Article 31 of the Constitution ... Marriage shall be entered into with free consent of the man and woman intending to marry. The maniage Act which for this purpose also applies to the Christian Marriages requires that both parties must agree to the maniage and that the consent of
31 [1960] E.A.L.R. 358
15 the marriage or guardian be obtained if a party is under the age of 21 and is not a widow/widower. The Hindu MaiTiage and Divorce Act are silent as to the consent between the parties. However, if the girl is below 18 years the consent of the parents and guardians must be given. In customary marriages, the practices differ from area to area, in some cases consent of the parents is sought iiTespective of the age of the patties. The problem m·ises where the parents refuse to consent to a given maniage yet the concerned parties are ready for maiTiage for exmnple under customary marriage in Buganda people from the same clan are not supposed to marry each other, problem will also arise where the parents or guardians consent to a marriage yet one of the party is not interested in the said marriage. The law is concerned about consent because spouses need to exercise their freedoms without infringing on other people's rights. A case in point is P ARAJCIC vPARAJCIC32the petitioner refused the proposal made by her father on behalf of the respondent for maiTiage. The petitioner's father went ahead to threaten her so as to consent to the maniage which indeed occurred. The petitioner relied on grounds of duress and mistake to nullify the maniage. Court held that the marriage was null and void since the consent of one of the party to be man·ied was absent, but only made after the father's coercive pressure and favor towards the petitioner. But other laws have consent of the parents as in the case of 33 ALOMER OCKBA v AZIZABINT ALOMER OCKBA , here the plaintiff a father of the defendm1t 23 year· old virgin sought an injunction restraining her from marriage without his consent. The court ruled in his favor because under the Shefei Moslem sect a virgin whether before or after puberty carmot give herself in mmTiage without the consent of her father. Thus the maniage laws ought to be subject to the constitution which is the supreme law of the land on principles to govern consent.
The marriage laws have remained silent on the issue of bride wealth. Although there are no provisions for it, Moslems and various tribes like the Baganda still recognize and value it. In
Islmn it is referred to asDawah in the Mohammedan Act34 tho~gh it is not looked at as bride wealth. The preliminaries to a custommy marriage involve payment of bride price, courtship and
32 [1959]1 ALLER
33 [1957 1E.A.L.R.
34 Section 2 of th~ Marriage and Divorce of the muhammedans Act cap 252 Laws of Uganda
16 performance of certain rituals. This bride price is paid by the boy's family to the girl's family. Without full payment of this bride price the marriage is not valid as was seen in the case of UGANDA v JOHN EUDKU35 where it was held that there was no valid marriage because bride wealth had not been fully paid. In another case of R v AMKEY036it was held that payment of bride price is equivalent to wife purchase. This is inconsistent with Article 33 of the constitution which states that women shall be accorded full and equal dignity of the person with. Therefore bride price today should become a legal concern because there are many traditional weddings that people make and this bride price is given as a purchase price for wives making them subject to men. This bride price is supposed to be a free gi1t as the Koran stipulates. Therefore the constitution Article 21 ( 1) states that all persons are equal and thereby have equal rights.
After divorce and separation the law looks at the custody of children and it seems to favor men. This is contradictory to the equality of men and women and also infringes on the rights of children on the family. They are not given a chance to decide on whom they want to live. But instead the man who is able to provide their necessities takes custody over them. Most judgments with the exceptions of infant children are made in favor of. The reason for this controversy is that worldwide and customarily in Uganda, all children belong to the father's side with patri
35 [1987] E.A.L.R
36[1932] EACA
37 [1959] E.A.L.R 109
17 The law is also silent on the issue of religion yet it is one of the qualities of acquiring marriage partners. However there seems to be no common position. As in the case of ALA WI v 38 ALAWI , the issue of religion in this case was recognized, where a husband man·ied under the Sum1i sect sought to divorce his wife under the shefitenents. It was held that there was nothing in Islamic law which gives the plaintiff, the right to subject the defendant to rules of law which he isn't naturally bound to which he has never submitted to and to which will alter his status to his detriment. Yet in contrast of the same legal concern of religiRn in the case of A YOOB v 39 A YOOB , Rudd J, showing that the issue of religion under the Mohammedan Act is an insufficient justification said that any two persons can get validly married under the Act, whatever religion either of them may profess and even if one or both profess no religion at all. As it is stipulated in article 31(1) of the constitution of the republic of Uganda (as an1ended).
Hither to the above, family marriage laws prohibit matTiage between parties who fall within certain degrees of man·iage, affinity or consanguity. Although the marriage Act provision prohibits maniage of persons with prohibited degrees of consguity and affinity, the Article refers to the three categories of degrees that are prohibited in England. Section 2(2) of Hindu MaHiage and Divorce Act considers persons within prohibited degrees of consguity. Maniage within prohibited degrees of kinship is also prohibited under the customary marriage and registration decree. It's clearly specified in the second schedule of the decree. Marriage between parties within the prohibited degrees is also prohibited under the Mohammedan Act. The fact that these persoris are not permitted to have sexual intercourse automatically puts them within the prohibited degrees and the Penal Code classifies the act as an offence of incest. In our view as a group since Atticle 31 of the Constitution doesn't consider prohibited degrees therefore authorizing any person to marry adperson of his or her choice so long as they are 18 years and above. Therefore Section 2 of the Hindu Maniage and Divorce Act and the second schedule of the customary marriage and Registration Act are inconsistent with the Constitution
38 [1953] E.A.L.R
39 [1967] E.A.L.R 416
18 Also the succession Act provides that a married woman acquires the domicile of her husband. This is contrary to the equality of both men and women in article 21 of the constitution. The law is in place to make the fiction of oneness visible to the other members of the community. this controversy is their because by the time this law was enacted, women were themselves regarded as property and property callllot own property thus there was no women emancipation than is the case today, today even women can inherit their late father's property. At common law a woman had virtually no power to make a will, although she could always devise and bequeath property held to her separate use in equity even if it were subject to a restraint upon anticipation. By section 8 of the wills Act 1837 every will made by a man or woman is revoked by his or her mmTiage.
Section 4 of the Customary Marriage Registration Act provides that Customary Marriages may be polygaJ.nous this was seen in the case of ABDULRAHMEN BIN MUHAMMED v REGINA40where polygaJ.nous mmTiages were held to be recognized in society. This confirms the fact that women are still undercooked in society which is inconsistent with constitution of Uganda which provides for the equality of men and women in Article 21 (3) thus all people are supposed to be given equal treatment regardless of their sex.
The issuance of customary marriage certificates at the age of 21 years under section 25(b) 41 raises a legal concern. This is because if the people are allowed under law to many by the age of 18 years, why then should the registrar of customary titles wait until they are 21 years of between the two people and shouldn't be issued at alter time of the marriage of the spouses.
The issue of children in the faJ.nily's provided for in different interpretations. Under customary law the children are considered to be belonging to the man alone and the woman has no say about them. She merely produces them for her husband and his 9!an as in African man·iages, it was therefore held in the case of KAJUBI V KABALI 42 the husbm1d is in charge of the
40 [1987] EACA
41 C"stomary marriages registration Act cap 248 law; of Uganda
421(1987)E.A.L.R
19 upbringing of the children and what the woman does is to produce'. Yet the constitution provides under Aliicle 34( 1) that children shall have the right to know and be cared for by their parents. The children's Act also provides that the upbringing of children is the responsibility of both parents.
Therefore, there are various legal concerns within the family laws that affect individual and group rights and which are inconsistent with the provisions of the constitution although some marginalize the male, majority have been noted to marginalize the female. In view of this all the laws concerning family and marriage should be reviewed and put in line with the Constitution because it is the grand norm of this country.
There are arguments in favor of the bride-price tradition; and there are also forceful arguments against it.
20 2.3 Argumenis for Bride-pl"ice
1. It is mostly an African custom (in many parts of the continent). The people expect it.
2. It stabilizes the marriage and prevents the wife running away from her husband
3. Payment of dowry demonstrates that the husband-to-be is capable of caring for and supporting a wife.
4. Payment of dowry makes the wife feel that she is wmih 'something' and that her husband considers her valuable; therefore it builds her sense of self-respect. It can be considered a proof oflove.
5. Christian missionaries have often supported and encouraged the dowry system as a safeguard to the stability of maiTiage.
6. The parents of the girl feel repaid for all their expense of caring for her and educating her.
7. Bride Price enables the girl's parents provide similar dowry for their sons to marry wives. Thus the bride price becomes a kind of revolving fund in the family.
8. Payment of the dowry satisfies a deep longing for justice and legality in the eyes of the families involved.
9. In our modern society with marriage breaking down, increased infidelity, pre-rmirital sex, adultery, and prostitution, the bride price tradition is seen as a factor that links modern African society to the strong moral standards of its pre-colonial past.
10. Perhaps most important of all, dowry is understood to be an evidence that the man is serious about his intentions to make the marriage stable.
21 11. The Bible tells us that dowry was an essential element of ancient marriage.
2.4 ARGUMENTS AGAINST
1. It degrades the woman to the status of a commodity being s~ld and bought.
2. It makes marriage to become primarily an economic relationship in which the choice of a wife depends on one's ability to pay rather than on mutual respect and love between bridegroom and bride. In other words, only a rich suitor is ever able to marry a rich man's daughter; thus the system aggravates rather than heals class distinctions. A young man can demonstrate to the girl's parents his ability to care for her by his intelligence, diligence, and success in making the most ofthe opportunities he has had in life so far. Such character is true wealth.
3. As bride prices rise higher and higher, haggling and bargaining enter into negotiations. Thus, a hard spirit enters which is destructive to the love and respect that ought to characterize future relationships between the two families.
4. Since the wife's motivations to be faithful and helpful to her husband are affected by the fear of her parents' inability to return the dowry if she fails as a wife, it becomes more difficult for a love-relationship to develop that would make the maJ.Tiage truly stable. Selfish economic factors do not build genuine love and tidelity.
5. In modern educated society, young people tend more and more to want to marry the one of their own personal choice based on love; the girl's P.arents can easily thwart this by demanding of a worthy young man a dowry impossibly high for him to manage to pay. Thns, they can force her to marry someone she cannot truly love.
6. The dowry system encouraged hard-hearted but wealthy husbands to treat their wives in any way they wish since they have successfully "paid' for them: the system also encomages the wife to consider herself virtually a slave to such a husband. Her parents
22 cannot encourage her to resist in justice because they fear having to pay back the price paid. Thus the dowry system contributes to the degradation-ofwomen.
7. African newspapers contain numerous articles and letters from educated people who declare the system to be a modern counterpart of ancient slavery.
8. With the dowry system, the young married couple must suffer serious privation in their home because so much of the husband's income must go to paying the wife's parents the unpaid portion of the dowry. Those who argue that this long over-hanging debt is good because it keeps the wife submissive are answered by the argument that this problem creates unnecessary tension in the new home. It becomes a continual cause for resentment and bitterness.
9. Opponents ofthe system point out that it actually encourages divorce, infidelity, and polygamy in that it substitutes for and thus replaces the proper Biblical basis for happy, stable marriage-love and the desire to honor God. The wife's self respect based on dowry paid is reduced to a materialistic basis.
10. The deep need for a foundation of legality and justice in marriage is better satisfied by the public vows oflove and fidelity under God, witnessed and approved by family and friends.
11. Although dovvry was a stabilizing factor in maniage in' the past, the rapid increase of education and urbanization has made it only obsolete, but actually a hindrance to mo.cfern marital happiness and stability. it is even blamed as one of the causes of modern prostitution. Young people frustrated and defeated by excessive dowry demands tend to elope and live together without a proper marriage. This only perpetuates immorality.
23 2.5 NATURE OF PAYMENT OF BRIDE PRICE
Although traditionally, there may be differences on preliminaries regarding courtship and marriage between the commnnities, its nature and practice is essentially similar in many respects as would be expected across many African societies and cultures. Among the BATOORO, when a boy identifies a girl that he admires, he immediately informs his family who will then send an emissary or agent to the family of the girl to survey and determine the background of the girl's family.
Great care is taken to ensure that the twofamilies are not within the prohibited degrees of relation " and once the agent completes his assessment of the girls family he relates the news back to the family of the boy who then invite the girl's family to view cows at the boy's home.
Once the girl's family is satisfied, arrangements are made for parents of the two families to meet so that they can determine the amount of bride price, the mode and procedure of payment. 43 Women do not play a central role in these transactions which are purely a male affair .
This is where the super ordinate - sub ordinate arrangement in the subsequent marital relationship begins. Ordinarily, animals such as cattle, sheep and goats feature prominently as the mode of payment as traditional symbols in marriage rituals, though most recently, part of these are converted into cash.
Depending on the agreement reached by the two fan1ilies and their clans, bride price may be relatively higl:. Many factors determine the number of animals that a father will ask for as bride price. Sometimes it would be how well he compares with others within his clan, society or neighbors or the level of education of his daughter. As a result, young men together with their parents and clan would be pressured to raise the required number of animals in exchange for the girl. Perhaps this is well captured in a quote regarding bride price, which would buttress the basis for high bride price and the attendant pressure it would exert on young men who desired to marry:
"1996 Research by Makerere university institute of African Studies
24 The phenomenon was in pa1t caused by the equivalent of an inflationary spiral: in a society where cattle were both prestige goods and illadaptedto the wet and hilly environment, where every father feared being left in the lurch by finding that the bride wealth which he has accepted for his daughter will not suffice to get him a daughter-in-law in turn; therefore he is always on the lookout for any signs of a rise in the rate, and tends to raise his demands whenever he hears of other fathers doing so.
2.6 BRIDE PRICE AND DOWRY " Bride price and dowry are terms that refer to payments made at the time of marriage in many cultures, primarily in Asia and Africa. Bride price is typically paid by the groom or the groom's family to the bride's family. This is most common in Aflican societies.
Dowry is typically paid by the bride's family to the bride or to the wedded couple. Thus bride price and dowry are not necessarily the converse of each other.
However, dowry payments in South Asia are demanded by and paid to the groom's family (and not just to the bride or the wedded couple). This suggests a usage of the tem1 dowry to mean a 44 ~,rroom pnce,. t h e reverse o1' a b n"d e pnce..
Bride price and dowry need not be mutually exclusive, and marriage transfers in both directions can occur simultaneously. A complex set of nmms may then govern the nature and the magnitude of payments in either direction.
44Dowry and Bride Price Prepared for the International Encyclopedia of tile Social Sciences, 2"' Edition
25 CHAPTER THREEE
THE LEGAL POSITION OF BRIDE PRICE IN UGANDA
3.0 Introduction
Even when several people and related institutions still question the illegality of payment of bride price, there are some laws, regulations and institutions (including customary laws and case laws) which help on the payment of bride price today in Uganda as the chapter discusses.
In Uganda, our marriage laws have remained silent on the issue of bride wealth. Although there are no provisions for it, Moslems and various tribes like the Baganda still recognize and value it.
In Islam it is referred to asDawah in the Mohammedan Act 45 though it is not looked at as bride wealth.
The preliminw:ies to a customary marriage involve payment of bride price, courtship and performance of certain rituals. This bride price is paid by the boy's'fan1ily to the girl's family.
Without full payment of this bride price the marriage is not valid as was seen in the case of UGANDA v JOHN EUDKU46 where it was held that there was no valid marriage because bride wealth had not been fully paid.
In another case of R v AMKEY047 it was held that payment of bride price is equivalent to wife purchase. Chief Justice Hamilton held that, "In my opinion the use of the word 'marriage' to describe the.relationship entered into by an African native with a woman of his tribe according to tribal custom is a misnomer which has led in the past to a considerable confusion of ideas. I know of no one word that con·ectly describes it; 'wife-purchase' is not altogether satisfactory, but it comes much nearer to the idea than that of 'marriage' a~. generally understood among civilized peoples."
Hamilton applied the Christendom understanding of marriage to people with a totally different
45 Section 12 of the marriage and divorce of the muhammedans Act cap 252 laws of Uganda 46[1987] E.A.l.R. 47[1932] EACA
26 perception of the same. Throughout the colonial era, the decision in Amkeyo was the binding and persuasive precedent on the courts. Virtually in all cases where the question of validity of the customary maniage arose, reference was made to Amkeyo's case, the vulgar and derogatory definition that Hamilton gave to African marriages invoked. By 1963, colonial courts still deemed our maniages to be exchanges of chattels (women) amongst men! Hence in 48 AbdulrahmanBin Mohamed and Another VsR , the Court of Appeal for East Africa held; "The marriage appears to have all the elements of "wife purchase", the description given to an African customary maniage in Amkeyo' s case." (Emphasis mine)
However, the post-colonial era marked the ascent of African judges to the bench. Unlike European judges, African judges were sensitive to and understood African customs and ways of life. It is during this time that Amkeyo 's case was overruled by the 1967 famous case of Alai 49 VsUganda . This was a reference to the High Court by a Chief Magistrate to whom an appeal had been made. The court of first instance followed the ratio de.cidendi in Amkeyo' s case and found Alai guilty. The appellant appealed to the Chief Magistrate who found it necessary to seek guidance of the High Court, himself bearing the belief expressed in Amkeyo 's case. In response, Sir UdoUdoma, C.J, stated that "In my opinion the views expressed by the learned chief magistrate are both extraordinary and dangerous having regard to the situation and the social stmcture of Uganda and the different and complex forms of marriages recognized by the law of Uganda." He declared a marriage valid and legal if held under a valid custom. Alai's case is the precedent on the validity of African customary marriages in the post-colonial era.
The doctrine of precedent generally maintains uniformity in law and makes determination of cases predictable through decisions of one court binding another on points of law. For this reason, R VsAmkeyo (supra) was for virtually the whole coloniaf,period, the law governing the validity of African customary maniages. Now Alai Vs Uganda (supra) is the law governing such marriages again due to the same principle.
It is therefore legally correct from the precedent of Alai V s Uganda to state that Payment of bride price is a legally accepted norm in customary marriages in Uganda.
48 [1963] E.A.L.R. 188 49[1967] E.A.L.R. 596
27 Amkeyo' s case was a deliberate imperialist machination to subjugate African culture. Cultural '' imperialism was at work and imperial colonial courts were better placed to achieve its objectives because they gave it a disguised legal and humane face
3.1 THE CURRENT LEGAL POSITION OF BRIDE PRICE In a landmark mling on 29 March 2010, the Ugandan Constitutional Courtrejected a petition for abolishing the traditional practice of bride price (dowry) in Uganda 50 The petitioners, in their attempt to have the practice abolished, argued that bride price turns women into commodities, it promotes domestic violence, it gives rise to inequality in man·iage, and it violates the constitutional principle of equality. The petitioners further argued that the practice interferes with the consent of both the bride and groom, because it incentivizes members of the extended family (who stand to gain from a '' matrimonial union of two individuals) to push for marriage. In addition, the practice forces a husband and wife with in·econcilable differences to stay married, because the bride price is paid under the condition that it will be refunded in the event the marriage is dissolved. In a four-to-oite majority decision, the Court held that the petitioners had failed to convince the court of the linlc between bride ptice and domestic violence. LaetitiaKikonyogo, DCJ wrote that "the court cannot say with certainty that bride price be unconstitutional on such a ground, because there are varied and numerous causes of spousal abuse." According to Kikonyogo, although the practice occasionally results in domestic abuse and mistreatment of women, that fact alone is not sufficient to compel the Court to make a general prohibition of the practice. Justice Amos Twinomujuni, the only dissenter, argued that the practice has "become purely commercialized, highly exploitive [sic] and humiliating to women." Twinomujuni went as far as equating the practice to slavery. Kikonyogo and Twinomujuni took the same position on the practice of requiring a woman to pay back bride price in the event of dissolution of a marriage. Kikonyogo wrote that such a practice
50Rakhimdinova,Aijan, Bride price controversy article available at http://www.su nd,vvision .co. ug/detail. php ?main NewsCategoryl d;7 &newsC'!. tegoryld;123&newsld;714374.)1ast accessed on 03'' may 2013
28 undermines a wife's unique and valuable contributions to a marriage and violates her constitutional right to be an equal partner. Twinomujuni argued that the practice of making a woman refund the bride price when she decides to leave an abusive marriage is unconstitutional, because it dehumanizes the woman.
3.2 THE FUNCTION OF BRIDE PRICE The giving of property by a husband or his guardian to the wife's family is probably the most important element of a customary maniage. Bride price is a mandatory and imperative sine qua non condition for any maniage in indigenous African connnunities. Bride price negotiations usually involve senior men in the two families who decide what commodities to be given or amount of money to be paid Although bride price was synonymous with maniage in all the Ugandan systems of customary law, colonial administrations frowned upon the practice, which they thought represented the purchase of a wife. On this understanding, attempts were made to ban bride price. The idea that wives were being bought in this crude commercial sense has now been exposed as a fallacy, and in general twentieth-century anthropology has encouraged a much more positive interpretation of bride price. 51 Admittedly, Marxist theory contended that it was a mechanism whereby seniors could preserve 2 their dominance over juniors and women, 5 but anthropologists ofthe functionalist school 3 showed that bride price was no more than a consideration for a wife's reproductive potential. 5 As such ,it was a quid pro quo that compensated the wife's family'for loss of a daughter54
51 An account of the functions of bride price is given by Dlamini 1984 De Jure 150-5. 52See TerrayMarxism and 'Primitive' Societies 163ff and Meillassoux (1960) 4 Cahiers d'EtudesAfricaines
"Holleman 148-9 and Evans-Pritchard (1947) 6 Afr Studies 187. This interpretation was endorsed by the principle that parental rights should be determined by full payment of bride price. See Reuter Native Marriages in South Africa 218-22, Mathewson (1959) 10 J Racial Affairs 72, Jeffreys (1951) 10 African Studies 145ff and Brandel (1958) 17 Afr Studies 34ff.
54Preston-Whyte in Hammond-Tooke The Bantu-speaking Peoples of Southern Africa 187-8.
29 According to this more sympathetic view, bride price worked to stabilize marriage 55 and to protect wives, 56 a view supported by the rule that husbands who mistreated their wives were to be penalized when claiming return of bride price on divorce. Some writers have gone so far as to say that bride price was 'the Bantu woman's charter of liberty' 57 and that it benefited women by 8 providing a public measure of their worth. 5 Functionalism also stressed the ritual significance of bride price by showing how it bound families and their relations to the ancestors.59To some Africans, abolishing bride price would be an assault on African culture religion. This religious dimension is apparent in the practice of segregating p;operty used for marriage from ordinary trade good\>. Thus, in some communities, bride price livestock are withdrawn from the general economy into a closed system of marital transactions.
The problem with all these functionalist arguments is deciding how to measure the 'success' or viability of a social practice. As Dr H M de V ettapointed out, 'some good things can be found in virtually any bad system. And even then, their goodness may, more often than not, be simply a matter of viewpoint or even of wishful thinking.' This observation is especially relevant when blide price is c;onsidered in historical context. No matter how beneficial the institntion may have been in the past, changes in the broader social and economic system have inevitably affected its contemporary practice. 60
In reaction to the introduction of a capitalist economy, for instance, the cattle and other goods formerly reserved for marriage transactions acquired a new value, measurable against cash and
55Namely, high levels of bride price discouraged divorce: Gluckman in Radcliffe-Brown & Forde (n10) 182ff.This hypothesis was later revised in light of research indicating that high marriage payments depended on the stability of marriage, rather than the other way round: Gluckman/deas and Procedures in African Customary Law 62-3. Nevertheless, the arguments seem inconclusive: Simons (n16) 95 and Dlamini (n34) 171.
5 ~he 1883 Cape Commission Report on Native Laws and Customs 70.
57Soga Ama-Xosa274-S.
58 See Dlamini (n37) 151-2, Hunter 190 and Chinyenze (1983-4) 1-2 Zimbabwe ~fl241.
59Krige (1939) 12 Africa 403 60Mathewson (n39) 72-6 and Holleman (1960) 11 J Racial Affairs 106-9.
30 consumer goods. Livestock lost its special symbolic quality, and alien imports, because of their rarity and cost, were assimilated to the category of marriage goods.
Nearly everyone now gives cash or a combination of cash and livestock as bride price. With changes in the composition of bride price carne changes in function. No doubt people at first resisted commercialization of the institution, but the general economy had an inevocable influence. Hence, the amounts paid in bride price increased enormously. People say that the bride's family must be compensated for their expenditure on her .~ducation. 61 It is probably true that a feeling of reciprocity was inherent bride price - that it should be used by the bride's family to buy gifts and to host the wedding- but families have a strong temptation to profiteer62
The danger of this tendency is to encourage men, who cannot afford the sums asked, to enter into informal unions, which in turn undetmine the entire institution of maniage
Moreover, people charge bride price for their daughters simply because they themselves had to pay it for their own maniages, and, of course, to settle inherited marriage debts. Guardians have a plausible reason for satisfying their immediate economic needs and husbands can justify their refusal to pay maintenance for wives and children on breakup l)f marriage. The property received by the bride's parents, especially when it is cash rather than cattle, is no longer being kept as financial security for the divorced or widowed wife. Instead, it is being spent on clay-to-day living expenses.
The Gender Research Project (CALS) in South Africa, for example, found that most of the cash is used by parents to pay for the education of other siblings or to improve their households by acquiting new furniture. Bride price is therefore not available to support a wife and her children ifthe marriage breaks c\own. 63
In communities that are desperately poor, bride price seems a profligate practice. 61
61 Article available at www.dailymonitor.co.ug last accessed on 14'' /may/2013 62 Emphasis is mine. 63 In any event, to say that bride price gave women financial or social security \'v'as misleading, since the property accrued to a wife 1s guardian, not to the woman herself.
6458 Although it still functions to redistribute wealth from the more economically active junior generation to The senior generation: Murray (1977) 21 JAL 80 and (1976) 35 Afr Studies 99ff. See further Murray & Lye (n36) 114, KoyanaCustomary Law in a Changing Society 2ff and Brandel (n39) 34ff.
31 Through the laborious process of exchanges needed to an·ange the terms and conditions, bride price binds cross-tribal marriages.
Similarly, through the two families' slow process of negotiation, bride price safeguards against impulsive behavior. Therefore it can be argued that the institution warrants a significant role in the validation of marriage.
3.3 THE SOCIETY AND BRIDE PRICE The research showed that bride price remains a deeply embedded cultural process in Ugandan communities. Many participants said that it was considered 'necessary'. A Muganda Man in Kampalasaid it is necessary to pay bride price because, it is culturally wrong to take someone's daughter without paying bride price.
Respondents also explained it as a form of cultural symbolism, representing the acceptance of the woman and man into each other's families. A government official said bride price 'symbolizes that be or she is officially married and known to the parents on the lady's side. Tlu·ough bride price a man is recognized as a member to the family of the lady and respect is given to that man'.
Respondents mentioned that for all marriages to be solemnized and recognized a bride price had to be paid first. One respondent said 'after payment of the bride price the woman now belongs to the man and it's upon them to decide whether to wed or not'.
A civil man·iage in a government office was for the maniage to be recognized by the govenunent. However many of the recently married young men and women reported that people marry (civil ceremonies) before bride price is paid. Many of the young participants did not agree on the bride price culture and said 'Today things are changing'.
The term "appreciation" was commonly used in describing b1ide price. Its pm1Jose was explained as a 'sign of appreciation to the side of the lady's parents, for it gives confidence to parents of the lady that they also produced'. Bride price was impmiant for some of the young women interviewed since they perceived that the status of a wife was bestowed through. this process. A recently man·ied woman said 'Women accept it very much because if you are not paid you are
32 looked at as a house girl to that family. Another said 'A woman feels safe, secure, and stable and respected if bride price is paid'.
Young manied women felt that Bride price was important as one said 'It improves relationships because the wife feels more secure and therefore works so hard to please the husband. There was peace after paying pride price'. Another said 'A woman whose bride price is not paid feels less attached to her husband and his family'. 65
3.4 UNDERSTANDING THE PROCESS OF BRIDE PRICE Many clan leaders explained the process as a series of events starting with falling in love followed by families from both parties deciding together on the bride price and finally ending with a religious ceremony in church or mosque. A clan leader said:'
'The two people promise to love each other. After that the relatives of the man go to meet the relatives of the girl to negotiate how much ride price should be paid. After that they prepare the wedding and go to church for maniage vows.' Another said 'A man gets a lady and they fall in love with each other. And thereafter the lady invites the man to her father's place for introduction. During introduction it is when the man is told how much he is supposed to pay.'
One participant said that a leader amongst the Bukonzo culture had indicated that the bride price payment is a continuous process and therefore does not come to an end. The example was given of how men continued to pay a goat to the in-laws whenever a child is born or a man would be asked to contribute to his brother-in-law's bride price by donating,a goat.
A recently married young man related his experience, which illustrated how closely linked bride price is to the process of marriage. He also explained how he was not able to meet all of what was asked for:
'After sending a gift to the girl, I wrote a letter to them, they replied. I told my people about it. I got 70% of what they had asked. We got there, they were also ready. We told them that we had come to marry. They got the letter (list of items wanted) and they were read out one by one as we showed them what we had brought. They wrote everything we had brought in a book and kept it'.
65 The Monitor of 19'h March (2004). Men and women: the price of the bride, h'~ggling over the wife's cost.
33 A recently married man explained the minimal role that girls have in this process:
'The speaker chairs the meeting introducing the members. , the girl is then called in the house and asked if she knows them. After acknowledging that she knows them, the letter is then opened by? The groom's family to see whether the items enclosed have been brought. The negotiations continue until the final agreement.
It was also evident that young women's involvement was not linked to the negotiations process. However many said that the agreement could only be concluded if she agreed on the acceptance of the husband but she did not have any involvement in the acceptance of the bride price. A young woman said 'After all this process I was asked if I love my husband and if they should accept them as in laws. I said yes before them and they cheered and congratulated me'. However she also said that she was very concerned during the negotiation because the money that was requested by her family was a huge sum and she was concerned whether the groom could meet these expectations, but an agreement was reached. 66
A young man explained the minimal role he and his wife played in the negotiation process and the lack of power they had in the agreement of the bride price. Parents and other elder family members were in complete control of the decisions. He said:
'' 'The man and his wife to be are not always involved in the negotiations. It's culturally not accepted. I was involved in only replying to the letter they wrote to us listing what they wanted. When it comes to the actual discussion I was not allowed to attend the meeting.'
Another said 'I was not involved in the negotiations it was forbidden for me to get involved in the negotiations' while a third said 'I was present during the negotiations though I never said any word'.
Most of the clan leaders spelled out very clearly the items and quantities that were acceptable For example, according to one clan leader:' It was customary that bride price should be 12 goats, a blanket, a hoe and 24 jericans of local brew'. More than one religious leader referred to bride price emerging from the bible. One participant said bride price is 'catered' for both 'culturally
66Matembe, M. (2004) The relationship between domestic violence and bride price, paper presented at the International Bride Price Conference, MP Mbarara and Pan African Parliamentarian, February, Kampala, Uganda.
34 and biblically' and it was also acknowledged that the bride price items and numbers differ depending on the tribe and its 'customs' of which the Bukonzo tribe was often mentioned.
However many factors appear to impact on the decisions made during negotiations. A paternal aunt said, 'Even one goat can be enough for bride price depending on the families' background, its way of behavior and also the negotiations between the two families'. The education and the 'background' of the girl appear to be deciding factors where 'background' refers to the financial status of the girls' family in the community. One female leader suggested that girls' education should not be considered as a factor in the decision of bride price and added that the practice is lmfair because the boy's education is not considered. She said, 'Education of the lady should not be put at the fore front when deciding bride price because even the parents of the boy have invested in educating him too.' However a solution to the problem of lack of support among families for girls' education can1e from one of the clan leaders interviewed who said that girls' education was important because it raised the bride price. He said, 'Education of the girl child should be emphasized in order to improve the family's bargaining power in so far as bride price is concerned'.
The process was essentially a bargaining process where the bri-de's family had the last word about how much should be paid. Terms such as 'negotiation and agreement' between the two sets of relatives was most often used to explain the process. A young woman said:
'My parents (and relatives) asked for two million and five hundred thousand shillings (US$ 270) and twelve gco.ts. My in laws said it was too much for them to afford. They bargained up to when both agreed to pay one million and eight hundred thousand shillings and si~ goats'. 67
3.5 CHANGES IN BRIDE PRICE OVER TIME Bride price items were separated into cultural items such as goats and additional items which have been added in more recent times. A woman interviewed said 'they have added sugar, suits for both parents, furniture etc. on top of the cultural bride price. An.. increase in the value of goats was often mentioned as a particular problem that adds to men's inability to meet the economic demands of bride price. In addition it was noted that bride price is increasingly becoming a . , commercialized process. As one leader said 'It is ... business in very many communities.'
67Matembe, M. (2004) The relationship between domestic violence and bride price, paper presented at the International Bride Price Conference, MP Mbarara and Pan African Parliamentarian, February, Kampala, Uganda.
35 The increased financial status of women in Uganda and its conflict with bride price was mentioned by a clan leader. The leader said that women who make enough money could refund the bride price but it was also said that this could lead to domestic violence women continue not to show any dependence tendencies for they can manage their OWI),affairs.
36 CHAPTER FOUR '' PROBLEMS ASSOCIATED WITH BRIDE PRICE
4.0 Introduction The study found bride price is a very strongly rooted cultural practice with many people in Uganda largely supportive of its existence. As such, problems are inevitable; this chapter discusses the problems associated with bride price.
However commercialization has changed the practice over time and its essential meaning has been eroded creating obstacles in cunent times. The study showed the struggle many young men have in trying to meet the demands of these practice- particularly poor young men who could not pay bride price and tried to find alternative ways to meet societal demands. Although some people viewed bride price as a form of protection for women within maniages by providing them respect, status and acknowledgement within society, the process and payment also prescribed their roles in the marriages and ensured women's subordination to husbands which invariable condoned the abuse of wives. On the other hand men could lose status and respect if they were not able to pay bride price.
Exploitation of women: among others the impact ofblide price on women has been argued that 68 it enslaves the woman ... disrespects her because the woman was bought through bride price .Some schola;·s argue that bride price is a human rights offence because It is not right to put human beings on the commercial market, bargain for them and when one is fed up, dump them ' leaving the woman psychologically tortured. Women lose their dignity, have to do endless hard Labour- and then failure to produce children becomes a big crime once you have been paid for:
Economic burden on men: The economic burden for men is a common theme in Uganda as the institution of bride price has gradually been very commercialized.
The economic impact on the couple and the couple often starting their maniage in poverty· is a glaring reality after paying a high bride price. It has resulted in povetiy since it is costly and over
68Matembe, M. (2004) The relationship between domestic violence and bride price, paper presented at the International Bride Price Conference, MP Mbarara and Pan African Parliamentarian, February, Kampala, Uganda.
37 charged and sometimes men are left with nothing after the payment of bride price, and therefore suffer after marriage because all the money that would be used to feed the family was used to marry.
Some may have to borrow substantially and go into debt and impoverishment in order to pay bride price and may have no income.
The increasing demand for a higher price for more educated girls and the copying of other marriage nmms from the neighboring tribes and cultures is very common today combined with the fact that the commercialization of the bride price process and that low income men are 69 particular affected by the rising costs . It was also noted that so1~e men are 'overcharged' thus leading to many financial hardships at the start of the maniage.
Pregnancy and elopement: Pregnancies outside of maniage and elopement are also some of the problems related to bride price expenses. Bride price has caused elopement in very many communities and unwanted pregnancies. This is as a result of the cost involved in the payment of bride price 70 (commercial tendencies attached to the traditional concept)
Loss of respect: Loss of respect as a consequence of inability to pay bride price. A man loses respect if he is not able to pay and a man may also disrespect the girl's parents if they make huge economic demands. Disrespect among both sides of the man and the woman happens because if one fails to pay then they don't regard him with respect and if they charge him expensively then the man's sid" of the fan1ily disrespects the woman's side. Another way in which a man could not earn respect from the women's family is when he is considered poor. AA lady may fall in 71 love with a poor man and this causes disrespect on the woman's side .
Death of the woman: Non-paying of bride price has a significant impact in the event of the death of the woman. If payment was not done the woman is not considered married and the bride price has to be paid fully before burial can happen. This has led to many disputes between
69 0guli0umo, M. (2004) Bride Prlce and Violence Against Women: the Case of Uganda, paper presented at the International Bride price Conference 16-18 February Kampala. 70Matembe, M. (2004) The relationship between domestic violence and bride p'rlce, paper presented at the International Bride Price Conference, MP Mbarara and Pan African Parliamentarian, February, Kampala, Uganda. 71The Monitor of 19'h March (2004). Men and women: the price ofthe bride, haggling over the wife's cost.
38 families. In the Bukonzo culture if you don't pay the bride price, if a woman dies when you have never officially married her, you pay double. 72(It acts as a way of disciplining the man)
Conflict: Starting a marriage while in heavy debt leads to much conflict between the man and the woman. Bride price also leaves outstanding marks like payment of debts and even interest on loans bmTowed during the period of paying bride price. Also the perception that he has been 'overcharged' could lead to numerous conflicts with the wife and abandoning the marriage because he feels cheated could also occur. Both parties may misu~derstand when the man is over charged; it may also lead to a breakdown of the relationship. Being overcharged also creates conflict between the bride and her in laws. The family side of the man eventually hates the woman because of overcharging of the btide price. 73
Continuous conflict between the man and his wife due to his non-payment can lead to divorce. Women are said to feel 'unstable ' in their relationships if bride price has not been paid. 74
4.1 THE QUESTION OF PROHIBITION AND CONTROL OF BRIDE PRICE Problem analysis
Bride price currently enjoys a specially protected status in Ugandan law. Unlike other customary institutions, the comts may not declare it contrary to natural ]\.1stice or public policy. This dispensation, which dates from the case of ALAI V UGANDA gave effect to the more tolerant views put forward by functionalist anthropology. Now it could be said to reflect the constitutional guarantee of freedom of culture.
None the less, it is commonly argued today that bride price leads to the subordination of women. Thus paying bride price is said to be tantamount to buying wives (a charge reminiscent of colonial times). That bride price seems to function as the purchase price for a wife is largely due to its commercialization. Dr H M de Yetta, for instance, said that it should be regarded as a sale rather than a "token of appreciation' when parties haggled over the amount or when the amount to be paid was fixed in advance. Similarly, Adv J Y de Kokernoted that, although the original
"Ibid 73SaadBalukuMutheghekiKuleSausiCrispusNaeemah Abrahams April 2012An Exploratory Study of Bride Price and Domestic Violence in Bundibugyo District, Uganda 74 ibid
39 purpose of bride price was not to humiliate, denigrate or objectify women, it now serves to strengthen the authoritative position ofhusbands.75
In view of the many objections to bride price, should the state now intervene to prohibit or at least control the practice?
4.2 Evaluation Paying bride price does not directly involve discrimination against women, in such a way as would constitute an infringement of Article 21 of the Constitution of the republic of Uganda 1995 (as amended). After all men have to pay, not women. Hence, any contention of direct discrimination would fail. An argument of indirect discrimination (which is prohibited by Article21 of the Constitution of the republic of Uganda 1995 (as amended) is also tmlikely to succeed. Indirect discrimination suggests that, although a practice appears gender-blind, the way in which it operated over time worked to the detriment of women. Again, however, it would be impossible to demonstrate that payment of bride price was the condition precedent to the tmfavorable treatment of wives, especially in view of the substanti Instead, it seems that the current objections to bride price go to matters of symbolism and interpretation. As R W Skosanaremarked, when a husband gives his wife a ring, is he buying her? Bride price hasa concrete effect on women's rights and freedoms only in the way that it may bind the,, to unwanted marriages. 77If a wife seeks a divorce, her family is theoretically obliged to return bride price, and, rather than do so, they may force her to put up with an unhappy relationship. The objection of undue pressure cannot be remedied by legislation, however. Women have the freedom to end their marriages when they wish, and the law carmot control all '' economic and social circumstances that might compel them to remain married. 75 And, because b'ride price and parental rights are linked, a father may retain his children, even if they would Be better off with their mother. 76Armstrong et al (1993) 17 International J of Law & Family 340 77Welch & Sachs (1987) 15 International J Sociology of Low 390 recommended education and persuasion as The appropriate methods of combating the negative aspects of bride price. 40 Opinion on the value of bride price in modern society seems to be divided. Some women for instance, cannot contemplate or understand the effect that bride price has on their status. Some claim that it dignifies them; others say that they are disgraced by being treated in the same way as property. We must also appreciate that, notwithstanding economic and social abuses, few people would want to see bride price abolished. Bride price is a remarkably durable institution that has strong appeal as a symbol of African cultural identity. It is the framework that people use to express and to bring about complicated changes in terms of relationships and deep changes in terms of emotional realities, values, attitudes and concepts. It is also the language that the ancestors understand and bless. Several studies indicate that people remain deeply attached . to the practice whatever its drawbacks. This is a situation where the legislator would be advised to refrain from interfering. Any attempt at regulation would be almost impossible to enforce. Past efforts to prohibit the giving of bride price or to restrict the amount payable proved easy to circumvent: it was simply paid in forms other than cattle or cash and pre-marriage gifts were deliberately inflated. The giving of bride price should not be prohibited nor should any restrictions be imposed on the amount payable. It should be considered an essential requirement for customary marriage Bride price should be treated as an essential requirement for the validity of customary malTiages. For most Africans, marriage and bride price are inseparable. Nevertheless, actual payment of bride price is seldom considered essential to the validity of malTiage. Besides, in practice, payment is often deferred and in appropriate circumstances it may even be waived. Because of these ambiguities, the 'official' version of customary law never finally decided whether bride price should be deemed an essential ingredient of man·iage. The courts' decisions were contradictory. On the one hand, certain judgments held that bride price was 'the rock on which the customary marriage is founded' 78and that 'there can be no marriage if there are no 78Mbanga v Sikolake 1939 NAC (C&O) 31 and BekkerSeymour's Customary Law in Southern Africa 151. 41 dowry cattle in the kraal of the woman's father'. 79 Other judgments treated bride price as an ancillary (and optional) contract. 80 Even in cases where bride price was considered essential, the courts did not specify whether the goods had to be physically delivered or whether a mere agreement sufficed. In practice, it proved impossible to insist on delivery, for the husband's ability to pay had to be taken into account (together with the ever-escalating cost of bride price relative to average income). In any event, transfer of property is an equivocal act, since mere payment of cash or livestock may signify not only an installment of bride pricebut also a pre-marriage gift or damages for seduction. The social context of a payment can, of course, clear up any uncertainty. Thus gooJs handed over prior to cohabitation can usually be assumed to be bride price, but, if cohabitation preceded delivery, the context itself offers no clue as to the purpose of payment. In the circumstances, it seems sensible to regard the legal effect of giving bride price as a form of evidence, albeit weighty evidence, of the parties' intention to contract a customary form of marriage. It will, in other words, mark the cultural attributes of a marriage. By implication, payment of bride price should be optional, analogous to the solemnization of marriages by religious rites. The practice may still continue to perform a social function of indicating a husband's appreciation. If bride price is not necessary to the formation of a customary marriage, then non-payment will have no effect on the rights of the spouses towards one another or their children. The human rights issues involved supersede any argument to the contrary. In my view, Legislation affecting bride price should apply retrospectively. In general, of course, statutes are deemed to apply prospectively, so as not to upset acquired rights. Special circumstances, such as a possible violation of the Bill of Rights, on the other hand, might 79Sipoxo& another v Rwexwana 4 NAC 205 (1919) at 206. 80 Biaine P 1927 NAC (N&T) 4. See, too, Jeffreys (n39) 150ff and ComaroffMeanfng of Marriage Payments 17-18. 42 demand retrospective application. In the case of rights already acquired to children by payment of bride price, customary law will have to give way to the overriding principle that the child's best interests are the paramount consideration. However, bride price should not affect the spouses' rights inter se or rights to their children ... Customary law did not nonnally allow an action in court to compel delivery of bride price. 81 The main long-term inducement to pay was the threat of losing parental rights to any children born of the marriage. A child's fate can no longer depend on payment or non-payment of bride price, however, since the child's interests are now of paramount importance.82 4.3 Enforcement mechanism Traditionally, the wife's guardian could put pressure on the husband to pay by 'impounding' the wife, sometin,es with her children. If it was apparent that the husband had the means, but still did not pay, action could then be taken to dissolve the marriage. This practice must fall away, since it obviously does not accord with the spouses' right to an undisturbed marital cons01tium.83 Although customary means of ensuring payment of bride price are no longer permissible, enforcement methods used for ordinary contractual debts are still available. The courts have already held that, if the pmties agreed to pay a specific amount or if the amount was fixed in accordance with a conventional scale, the wife's guardian may sue for payment: Ngalimkulu v Mndayil947 J':{AC (C&O) 65 and Mavuma v Mbebe1948 NAC (C&O) Bride price should not be returned to the husband .The husband should not be allowed to ask for return of bride price if he wishes to reclaim it after a divorce decree. 81A husband's neglect to pay might mean that he was dissatisfied with his wife or that he simply lacked the Means. If the father-in-law were allowed to bring an action, an otherwise happy union might be Disrupted. "The Marriage Act of 1" April, 1904 cap 251 of the Laws of Uganda 83 Art 31 of the 1995 Constitution of the Republic of Uganda (as amended) 43 CHAPTER FIVE RESEARCH FINDINGS AND RECOMMENDATIONS 5.0 Introduction This chapter focuses on the concluding remarks of the whole dissertation right from the start and the necessary recommendations which can help the regul~tors and formulators of the ongoing concerns with the entirebride price stakeholder 5.1 HISTORICAL AND THEORETICAL CONTEXT OF BRIDE PRICE Importantly: All analyses of bride-price or bride-wealth must look at the practice in its historical perspective. All research work on bride-price must take into account its previous usefulness as an ancient and valued practice which has aided communities and promoted social cohesiveness and harmony throughout remembered history. Interviews with key theorists and religious and cultural leaders on ,the issue revealed that bride price had cemented families together in the pre-Colonial period and had not been regarded in acquisitive terms as a 'price', but as a custom to build and strengthen communities and families. These interviews suggested that the practice was not understood well by the Colonial powerswho may have inadvertently aggravated its negative aspects through attempts to regulate it. For example, this was the case in the 1964 Bukedi bye-law passed at the end of the Colonial era in Tororo District which attempted to limit the amount of goods given. This attempt to legislate a maximum amount had the opposite effect, according to my academic and theorist informants. Rather than reducing bride-price demands, it led instead to the institutionalization of this maximum as the amount that was always expected to be given. This has gradually become accepted in the cultural marriage practices used in the District, ev~~ though it has been almost impossible to achieve for many members of poor communities and has led to consequent problems, according to duty bearer, religious leader and academic interviewees. 44 In the recent era, bride-price appears to have become a commercialized practice which is losingits former helpful role. Our research revealed that this could be particularly the outcome in richer or professional class communities and in the cities. Thus, the traditional value of bride-price is now less clear due to the impacts of modernization and the resulting commercialization of social customs in contemporary times It has become so commercial now. It is like the girl's parents are selling off their daughters in order to become richer or to escape povetty. Every parent wants their daughter to get married so they can benefit from her ... (Sub County Chief interviewee) As if the woman becomes a commodity. (Key expett interviewee)It is not right to put human beings on the commercial market, bargain for them and, when one is fed up with them, dump them, leaving the woman psychologically tortured. Women lose their dignity, have to do endless hardLabour - and then failure to produce children becomes a big crime --once you have been paid for.'(Duty Bearer: Christian father) It was pointed out by interviewees that bride-price tends to cement gender inequality into place in that women have little power in relation to the practice but, rather, are passed from fan1ily to family. Negotiations usually involve senior men in the two families who decide what the woman will do and how she will behave. Thus, bride-price"canis seen, in this view, both as a ;ymptom of male dominance and power in families and also as a cause. One example of how it can be seen as a symptom is that it is a product of men being inthe more powerful position in the family. It can then lead to men automatically expecting to control their family through its operation. One example of how it can be seen as a cause is that women have little power to influence the custom but are bargained over and 'exchanged' from household to household by male family members so there are few opportunities for equal treatment of men and women. Rather, the subservient position of the wife is often made worse and greater inequality is therefore frequently caused by the payment of bride-price. Bride-wealth nmmalizes men controlling everything and women's weak position as the one negotiated over, the object to be exchanged, so both ways the power difference is increased by 45 bride-wealth - it gives men more and at the same time women less: So it changes the power both ways. No wonder men don't like it to be challenged. 5.2 CUSTOM AND TRADITION Duty bearer and key expert interviews suggested the following 'cultural' issues which need to be taken into account in any consideration of bride-price. There are differing systems of bride-price in the country. About 62 communities' inUganda use varying bride-price practices. Customary marriage is solemnized and made valid if bride-price is paid. It can act as a 'certificate' of marriage, so that any reform would need to substitute another method of recognizing such marriages. (This is being partially addressed in the new Bridal Gifts Ordinance in Tororo.) The payment of bride-price has become a way oflife, often normalized in people's minds and difficult to challenge or change. People think it is normal; it's just 'what we do'. (Duty Bearer Interviewee) Not 'TlU'owing Out the Baby with the Bathwater' Many of my interviewees pointed out that bride-price will take a long time to change as it is embedded in communities and everyday cultural life. The following points were raised: ./ Bride-price is a sensitive issue in that seeking to change it could appear as disrespectful or a discourtesy to ancestors and traditional ways of life . ./ However, support for reform of bride-price was almost unanimous in the study, as discussed below. ./ Preserving positive aspects of this long-standing African tradition during any reform was simultaneously emphasized by some duty bearer and religious leader interviewees, as in the following quote: Shake up the practice, by all means, but try to get at its basic VALUE (emphasis by the interviewee) 46 ./ It can be as if you are insulting your mother, your forefathers. As globalization happens, we need to preserve the old but remove the harmful bits of it. Don't throw out the baby with the bathwater. (Senior Church Leader Interviewee -both quotes) 5.3 POSITIVE AND NEGATIVE IMPACTS OF BRIDE-PRICE The study assessed both the positive and the negative impacts of the practice of bride-price. Many positives were identified by the study respondents. These numbered more than had originally been anticipated. However, the negative impacts far outnumbered the positives. Many of interviews in the data-set suggested that bride-price has ri1ainly negative impacts. Only a few of the interviewees believed that it has mainly positive effects. The following quote demonstrates both positive and negative aspects. BridePrice as a form of 'buying people' is not right ... But, at the same time, it is believed that a man taking someone's daughter as a wife can give some appreciation to the parents, a marriage gift: to show he is appreciating them for the nurture, the care and upbringing of the girl. It is not to be bargained over, qua1Teled over ... (Church Father Interview) 5.3.1 POSITIVE IMPACTS OF BRIDE-PRICE From the data-set of members of the public, the following were highlighted: Bride price be,Jefits the in-laws to compensate for the expenses us~d to bring up the daughter. Bride-price can be used by the brother of the girl for also marrying It is a sign of appreciation to the parents of the girl, and you earn recognition and respect from the in-laws. It gives the parents of the girl some wealth in that even a poor family can use the bride-price to buy land. 1be cows also produce milk, which can be sold, and proceeds used for various plans. Bride-price is good because you sit in your marriage peaceful, it gives you value and mostly when you produce children, and it is good. Bonding families together and Offering appreciation for the 'gift' of the wife to the husband. 47 Giving women value and status in their marriages. Bride-price has cultural value -- many people like it. (Church Leader Interview) Also when the man has paid it, there is a way he safeguards the wife; even when he thinks of getting another woman, he will count the cost of how much he has put in. But when no Bride Price is paid, he will keep changing women. Bride Price actually reduces polygamy, because it is a burden to be paid for a wife.(Member of the Public Interviewee) Bride-price bonds together i) the couple and, ii) the two families. It joins the families to assist each other and work together in life. Two familiesbecomes one family' (Member of the Public Interviewee). It can also cement the community and provides stability within the families and hence in the wider village I community. It can spread the wealth m·otmd, transferring it between families , . Bride price says to the bride's family: Thank you for raising such a beautiful person and 'lending' her iv us. (Religious Leader Interviewee) It is a symbol of appreciation to the wife's parents: It's a token of what you have done for your daughter, her education, training etc ... etc, --now she is leaving your home, here is some recompense (Duty Bearer Interviewee) Thus, bride-price is a recognition and partial recompense for the fact that the woman is leaving her natal family and will no longer be able to contribute to that household. Thus, through the practice, their ~onsiderable and often painful loss is partially recognized. Bride-wealth gives the woman importance and value. She may feel that: 'She is worth something and is honored and respected' (Interviewee). She may have some weight and prestige in her new family due to bride-price payment, which helps her avoid abuse. 48 Therefore, at best, it can give daughters security and purchase in their marriages and their new homes. It can give pride to the woman, makes her feel comfo1table and imp01tant. It promotes the 'official' wife and seals her status as wife, as a worthy woman. She may, conversely, feel worthless, valueless and a failure if bride-price is not paid. Bride-price gives value to the marriage and also to the man. It provides legitimacy for him and his man·iage. He is a proper husband. Further, bride-price: Tells the boy that he has to be responsible about this, taking a wife, he is grownup now and there are responsibilities, have to show you can work, have to show you can supp01t a family.(Religious Leader Interview) 5.3.2 NEGATIVE IMP ACTS OF BRIDE-PRICE TheseCenters around; -/ The cementing of inequality between women and men. -/ Wives being 'paid for'. -/ Early and child maniage. -/ Loss of education for young brides. -/ Landlessness and homelessness for women. v' Abuse and violence against wives. Bride-price affected me in a bad way because on my husband's side-- every time they give orders make me overwork in the garden and at home saying that I am the property which was bought and I must do each and everything at home. (Member of the Public Interviewee) More developed examples of the negative impacts of bride-price: -/ Men and women should be equal in marriage according to the Law of Uganda. However, bride-price makes the maniage unequal in that the woman is paid for by the man. -/ Thus, the continued existence of bride-price cements inequality between men and women into place. -/ The woman can become an article of property in own home. Bride-price can give the appearance of co modifying human relationships: 'Selling a human being because the 49 family wants wealth, selling your daughter at a tender age ,',(Member of the Public Interviewee) ./ It may therefore feed into the abuse and maltreatment of the wife . ./ It may deprive girls of education when parents seek an early or forced marriage in order ./ to raise the bride-price, and take their daughter out of school: 'People prefer to get wealth at the expense of their daughter's education' (Member of the Public Interviewee) ./ Children may be taken away and withheld by the husbands relatives if the mother leaves since bride-price was paid ./ It leads to women appearing to be worthless unless paid for, belittled, and able to be treated however the man wants . ./ I feel bad. My husband could not afford bride-price. I feel lonely, rejected, neglected by my parents since they got no benefit from my marriage. My family is on bad terms with me because there was no dowry paid. I am very unhappy because there was no bride price. I would take it for my daughters because it was not paid for me and he divorced me for a new wife and I was left. He didn't take me seriously as a wife because he had not paid.(Member of the Public Interviewee) ./ The practice gives the possibility ofthe virtual enslavement of women in the worst cases . ./ Family can be divided, mothers in law, sisters in law can be resentful, their cows get taken away to pay it for new wife. Everyone takes it out on the woman often. Overall, she must obey everyone, respect, and serve everyone in her husband's family all the time.(Member of the Public Interviewee) ./ The man I boy may have to borrow substantially and go int0 debt and impoverishment when he is young and may have no income . ./ The practice may cause a male inferiority complex for a man if he cannot -- or fails to - pay . ./ Very y,mng brothers may be left to pay back bride-price for a sister leaving her husband . ./ Some men are left unmarried because of lack of ability to pay bride-price . ./ It may make having children impossible, as men I young people cannot afford maniage, holding back development and community life Forcing boys to cohabit or not even be able to marry or to have to leave rural areas and home. Leads often to forced marriage, girls being used as a source of income, parents pull her out of school early because they 50 get a good offer, they need the cows, money, so it affects education and welfare of girls etc.(Duty Bearer Interview) 5.4 BRIDE-PRICE VIS -A- VIS DOMESTIC VIOLENCE. The study showed that there is a connection between bride-price and domestic violence. The connection, however, was acknowledged to be a complex one in that domestic violence is a much broader social problem, and bride-price can be seen a contributing factor. Data sets of interviewees with experience of domestic violence and widows (in total, n=37). Approximately 99% of the interviewees who were known to have experienced domestic violence " and other forms of abuse presented evidence, or believed, that bride-price had been an important element in the violence they had experienced. In a small number of cases, different views were expressed within an interview, where the interviewee said at different points that domestic violence both was and was not connected with bride-price. A connection between bride-price and domestic violence was also a key element in the mistreatment of widows in the small data set with widows, with all 10 interviewees describing highly distressing examples of the impact of bride-price and abuse. 5.5 CASE STUDY Tis 34. Her words have been translated and precised. What happened? T married her husband and bride price was paid. She had four children. She managed her household OK but her husband was violent to her and she wanted to leave because she was tmhappy. Her life was a misery with her husband and he was always unfaithful, going with other women and beating her at home, saying he had paid bride-price. Impact of bridco price She felt she could not leave because the bride-price could not be paid back by her parents. She was stuck. She did not know what to do, and had nowhere to go except to stay with her husband. Her husband kept on being unfaithful to her and she was often left with the children with no money or food. Then her husband got sick. He was ill for a while and she looked after him. 51 They did not know what the matter with him at first was. Then he died. He left her with the four children. It turned out he had died of HIV. Ever since he died, his brothers have harassed her. They say she should go away, they do not want her there, and say that her husband has died so why is she still staying ... They have kept trying to push her away. They have beaten her and hurt her time and time again. They say she is a widow and is living on her husband's land that is now their land. They are trying to take her children saying they are her husband's children so she must '' give them up. They come and fight her all the time. She has been badly abused both by the husband and more lately by his brothers. She still does not feel she can go back to her parents as the bride-price would still have to be repaid, even now, according to the brothers. Two cows were given for her which have died or been eaten. She lives in constant tenor. Despite this many women and men remain enslaved financially and physically by bride price. Immaculate Akello, a 45-year-old widow from Tororo district, says that for years she was abused physically and psychologically because of bride price. Akello was manied off as a young teenager of 14 years. Her family demanded for six cows, five goats and clothing as payment for her maniage and sent her on her way. Akello recalls that five days into her marriage, her husband laid down the law. He gave her seven conm1andments that she was to follow strictly if she was to remai1i'his wife Akello was not to leave her home in the absence of her husband. Interaction with all her male relatives was forbidden and she was not allowed to participate in community activities. For Akello, taking a bath in the outdoors bathhouse was outlawed after 6 p.m. If she went to the well to fetch water, she was sent with a timer to ensure that she retumed home as soon as possible. Akello tells of an occasion when she responded to the casual greeting of a passerby and was beaten within an inch of her life by her husband. Her problems were worsened by her failure to conceive a child. Believing her to be cursed, Akello endured the humiliation of her husband's numerous extra-marital affairs. Once Akello attempted to confront her husband about his promiscuity. He picked up a charcoal stove and hit her with it, sending her to the hospital for three days.• · Akello says that although her situation was unbearable, she could not leave because her family could not repay th~ bride price. She says her husband often told her that he had paid for her and had the right to treat her as he pleased. 52 With no financial independence and unable to return home, Immaculate Akello was prisoner of her marriage. Data set of interviews with members of the public (n=l80) Significantly, almost all the women interviewed in the 'members of the public' interview data-set (n=l22) had experienced abuse and this was very frequently connected with bride-price. It should be noted that the sample for this data-set did not consist of victims of domestic violence. Experiences of violence were not a criterion for selection. Rather experience of bride-price was the criterion used. However, the vast majority of the women interviewed - approximately 95% -- told there searcher that they had such experiences. Both the men and women interviewees suggested that bride-price was related to domestic violence, but the percentage doing so was higher for women. The ,majority of the interviews with men (n=58) did indeed believe that there was a connection but, overall, more women believed this proportionally than· men. Overall in the whole interview data-set, approximately 84% (n=l26) of interviewees who answered the question (n=l50) believed there was a direct connection between domestic violence and bride-price. I had no happiness in my marriage because I experienced a lot of domestic violence and abuse. Bride-price is a very bad thing because when you are bought you are almost like a property and it causes domestic violence. (Member of the Public Interviewee) The vast majority of the interviewees believed that there was a .connection between domestic violence and bride-price, although some interviews contained contradictory data. The number of these interviews was small (n=27), but the percentage believing that bride-price contributes to domestic violence was approximately 90% (n=24). However, small minority of important expett interviewees asserted that the connection is a complex one. They'suggested that it would be inadvisable to attribute abuse to a cultural practice which is so widely practiced 53 And accepted, stating that the causes of domestic violence are much wider than bride-price and that, in some cases, bride-price may actually be of help in that the ',;,ife is accorded some worth. Key points Many different examples of domestic violence resulting from bride-price payment were raised by research informants during the study. However, the principal ways in which bride-price causes domestic violence were identified by interviewees as follows: ./ Domestic violence occurs because the man often feels that he 'owns' the woman and she is therdore his servant. ./ Thus, if the wife does not do the husband's wishes, he may feel entitled to punish or chastise her. ' ./ Further, he may lack any feelings of respect for his wife due to the payment made, so that he may engage in domestic violence as a matter of course . ./ If a wife leaves due to domestic violence or marriage problems, her family often cannot repay the bride-price and therefore cannot take her back. The woman is frequently forced to stay in or to return to the violent marriage. Yes, physical and verbal abuse because of the bride-price he paid: I had to do a lot of work and was expected to serve my husband's people. I was abused by the grandfather- in-law and my husband became physically aggressive when I reported the father- in- laws complaints, saying he had paid bride-price so I had no right to complain about anything. I experienced all forms of domestic abuse, verbally, sexually and financially. He wants my money but doesn't give me his '. and that is why he one time cut me witha hoe and disappeared for one month. Many times he has forced me into sexwhen I am sick, beaten me, slapped me and shown me no form of respect. You can even see this scar on my face. This happened because he paid bride-price. Many times he would say 'after all I have paid for you .... ' (Member of the Public Interview) After the bride-price was paid is when my husband started mistreating me but when he married his second wife, the abuse even became worse. I think he beats me because he knows I cannot refund bride-price so I cam1ot leave him. (Member of the Public Interview) 54 However, while domestic abuse is widespread and endemic in some communities, bride-price itself appears to increase the types of abuse that wives experience and the reasons why violence occurs. It cements women's inequality and the likelihood of their husbands feeling that they have a right to dominate and control their wives, using violence if they wish. Domestic violence is much bigger than bride wealth. Bride-wealth is one stop along the way of an enormous wide problem. There are many other causes of domestic violence of course. You will not get rid of domestic violence by getting rid of bride-wealth-- but it would certainly help.(Academic Interviewee) ./ This indicates that combating domestic violence requires a, multi-pronged struggle, of which reform of bride-price could be an important part. 5.6 ARE BRIDE-PRICE AND POVERTY CONNECTED? A large majority of interviews overall from all the data-sets pointed to examples of experiences of bride price contributing to poverty, and maintained that there was a connection between the two. The majority of the interviewees believed that there was a cotmection between poverty and bride-price. Some interviews contained contradictory data and the number of interviews was small (n=27). The percentage of the key expert interviews who had evidence of, ,or believed, that bride price contributes to poverty was approximately 75% (n=20). Again, this was a significant majority; but still was substantially less than the equivalent percentage for domestic violence. A significant minority of expert interviewees -- one quarter -- believed that the connection is a complex one (n=7). This was due to the fact that goods and money are transfeJTed between families by the payment of bride-price. These interviewees suggested that this traditional practice is to be valued and does not necessarily result in impoverishment. The issue is not always a clear one because wealth changes hands (given for sons, received for daughters) but may still remain in the community. It gives the parents of the girl some wealth in that even a poor family can use the Bride Price to buy land. The cows given also produce milk~ which can be sold, a~d proceeds used for various plans. 55 A payment of bride-price in our home: it was good because my family is able to appreciate that at one time they gave birth to a girl, it also gives some little financial boost because like my father, he did not have cows to pay for my brothers, those cows from me, they can be used for their bride-price. (Member of the Public Interviewees) A minority of interviewees suggested particular caution in claiming that bride-price promotes poverty, although it may contribute. The bigger issue is certainly r;?verty itself. Nevertheless, various mechanisms were suggested for how impoverishment is increased, as discussed below. Key points The following key points were drawn out from the study in relation to impoverishment and bride-price. of' The practice encourages impoverishment for young couples and families as all their resources are often put into raising bride-price, just at the time of their lives when they need tc. be begitming to settle down and make a home. of' People therefore start out on their married life in impoverishment so that it can become difficult to then build income and sustainability of' Young men with few resources are likely to have to spend all they have on bride-price and then face poverty as they try to support their new family of' Many young men have to go into quite severe debt to raise bride-price and therefore start. out, not only in poverty, but also indebted and so even fi.niher disadvantaged. of' Wealth tends to be transfen·ed to older, more established community members (the bride's parents) at a key time in young people's lives, instead of to them of' Thus the 'evening out' effect of bride-price transferring wealth around a community tends not to happen, but rather to leave younger people impoverished or destitute. of' Impoverishment due to bride-price payments may mean thfl.t the family is not able to educate their children or pay school fees, so that disadvantage is reinforced. of' It may also result in early marriage since parents may have n,,ed of the bride~ price their·. daughter will bring, as noted above. 56 ./ Thus, bride-price difficulties are particularly an issue of poverty. My research informants described how, in richer communities, the issue might not raise too many problems . ./ In poor communities, however, people struggle for wealth. Thus, families may depend critically on the bride-price they have received, or might be' able to attract in the future, for their daughters. Bride-price then becomes of enlarged importance to everyone, and takes its toll in terms of making the poverty experienced even worse . ./ People may therefore be turned against each other due to the struggle to survive and to compete for scant resources . ./ For example, parents may be forced to refuse to take separated daughters back because they cannot repay the cows and goats given for bride-price. Interviewees throughout the study made the very important point that the overall problem is that of entrenched poverty itself, and bride-price is often a factor in increasing it. The oveniding issue is challenging poverty itself. However, work on bride-price is one part of this larger task. In middle class, urban or richer communities, demands for bride-price may also cause problems. In modem times, these demands may become very extravagant, inflated and hard to provide. Examples were given of bride-price including the gift of a new car, or costly consumer appliances. Young men may therefore have impossible demands made upon them in middle class communities for goods and money (rather than for animals) which they cannot meet. An exan1ple was given of teachers and legal workers being unable to afford to marry, as they could not raise the bride-price. On the man's side, everything is spent during the process of payment leaving a huge debt to be paid back in the marriage and nothing to start out with. (Duty Bearer Interviewee) To parents it causes riches but to the girl, it is poverty and suffering. She also experienced abuse because of bride-price. She left her violent husband. Her brother had to sell off iron sheets off his house to repay the bride-price, but the money was not enough, so they came and took the sides of the house. But as a result of it still not being enough, she was forced to re-marry; her second husband contributed two cows to refund the first husband. She is still suffering even with the second husband but can't go back to home because she is paid for. (Member of the public inte1view) 57 '' 5.7 REAL-LIFE EXAMPLES OF THE IMPACTS OF BRIDE-PRICE PROVIDED BY THE RESEARCH ./ Women being landless because of inheritance, of bride-price and of being excluded from property owning . ./ Husbands who regarded their wives as their property and engaged in violence and 'punishment' . ./ Women who were expected to serve constantly, since they had been 'paid for' . ./ Parents who were not able to take woman back on marriage problems as they could not repay the cows and resources . ./ Women who became homeless and destitute as a result. ./ Girls who were subjected to marriage at a very young age \I?- order that their parents could gain bride-price . ./ Girls who were withdrawn from school to marry and had to end their education . ./ Young man who had had to spend all their resources, and more, on bride-price . ./ Young couples who had started off in extreme debt and impoverishment. ./ A man did not pay bride-price, and the woman's parents and community rejected her since she had made a non-lucrative maniage and so refused to help her when problems arose . ./ Women for whom bride-price was not paid said they were regarded as inferior and stigmatized . ./ Women, for whom bride-price was paid, who were victimized if they did not give birth (especially to sons), since they had been 'paid for' to produce children. In several cases, this had led to severe abuse and abandonment ./ Several examples of bride-price still being paid after death, or the burial of a wife being delayed until payment by the husband was complete . ./ Opposite examples of burial being denied until fully-paid bride-price was repaid, where the women had died and their husbands' families demanded bride-price return before she could be buried . ./ Young brothers who had inherited their sister's bride-price and were unable to pay it. ./ Young men with no resources who had not been able to afford to marry at all. 58 ./ Parents who had sought unsuitable older men for their daughters who had more resources in order to get good payments . ./ Parents who regarded daughter as source of income and organized forced or premature marriage ./ Examples of wife/ widow inheritance by her dead husband's brother. ./ An example of further spread ofHIV through widow inheritance. 5.8 RECOMMENDATIONS While consideration must be given to the important role bride price plays in cementing relationships and bringing families together as well as the enactment of cultural traditions, the practice of bride price needs to be reformed and regulated. The urgency to unlock women's and girl's potential in contributing towards their own upward mobility and enjoyment of life, is one of the reasons that bride price has become an issue, the two sides being the direct costs that mise fi·om bride price related violations and abuses directed towards women and girls which hinder development as well as the indirect costs mising from the absence of their meaningful control over their lives, which is equally underscored by bride price. It is noteworthy that in almost all cases the transaction is negotiated by the extended family and in almost all cases, this excludes the views of the couple .. who however take primary responsibility to endure any bitterness if the trm1saction or the marriage goes sour. The practice of bdde wealth promotes cruel, degrading and inhuman treatment towards women. In Gulufor instance, it emerged during focus group discussions thata woman who had gotten children while cohabiting with her boyfriend would not be allowed back home by her parents even if she was being abused by her boyfi·iend until bride price was paid by the boy friend. 84 This practice then ensures that such women remain ensnared in a cycle of abuse as theyare not economically empowered to live independently nor refund the bride price and very often remain in such abusive relationships for the sake of their children. Similarly in Karamoja Region85 it emerged during focus group discussions held with men that husbands felt it was their right to discipline their wives by canning them because they had an absolute right over them having paid 84Foundation for Human Rights Initiative- Report on Human Rights Violence of 2007. 85ibidi 59 bride price. Bride wealth produces these types of degrading and cruel scenarios everyday in the kararnoja and Luo cormmmities as well as other communities in Uganda. Men who pay a price for their wife tend to treat her as a piece of property and feel justified in their abuse. Violence against Women resulting from cultural prejj.l,dices is incompatible with the dignity and worth of the Human Person. Here, bride price would fall under cultural prejudices because it affects dignity of women and justifies oppressive gender relations. Bride price can be classified as a form of inhuman treatment as it is akin to purchase of women /girls who have no control over what is to be paid and thesemakes them community properties. They are thus discriminated against and treated in the most inhuman ways. For as long as one individual is able to purchase another human being, a relationship cam1ot be premised on equality, mutuality, respect and dignity as the power dynamics are extremely tilted against the one who is purchased. Some have argued that bride price is equivalent to modern day slave trade. Not only does the practice of bride wealth threaten the health of women, but also that of men and children. Most international hmnan rights instruments recognize the right to physical and mental 86 health • The practice of bride price does not afford women the right to enter a marriage on their own terms, a right which men clearly have. The right to equality during the course of a marriage is eroded by the institution of bride price. In some cormnunities, if women want a divorce, they must get their fathers permission. Bride price must be returned to the husband; if the husband doesn't get his money back, then the wife will not be returned. Many women have to stay in abusive or unwanted marriages because their fathers carn1ot afford to or are unwilling to refund the bride wealth given to them by a husband. The study also shows that although most pmiicipants felt that the·practice of bride price should be stopped it was evident that both the payment and nonpayment of bride price served to affect the mmTiages adversely. Those participants who advocated for the retention of the practice were concerned about the legal status that the practice guaranteed them and their children while in the marriage although it was also clear that this guarantee goes hand in hand with the risk of being "Article 18 of the Convention on Eradication of all forms of Discrimination Against Women (CEDAW) of 1979 60 denied their property and economic rights within the same mamage. On the contrary the participants who wanted the practice banned were aware that without the payment they were liable to suffer the effects of harmful cultural practices associated with the practice such as the non recognition of the women or their children as legitimate wives and issues of marriage who have a right to inheritance and in some instances also the right to bury a deceased spouse. The underlying factor in all these instances was the legal status accorded to the women and the issues of marriage by virtue of bride price being paid so that although majority of the participants wanted to see the practice banned, they were at a loss as to how to combat the negative practices that necessarily can1e about as a result of nonpayment of bride price and indeed how to retain the legal status of themselves as wives and the issues of marriage as legitimate children who have the right to inheritance. There should be enactment and adoption of laws and policies that shall protect women and girls from harmful cultural practices. The change to the moneta1y value of bride price or flexibility needs to be considered and regulated. Without prejudice bride price must be reduced to a more affordable level. Educating communities about the traditional meaning of bride price needs to be undertaken. Communities should be sensitized on the value of bride price according to the culture - what it was meant for <)therwise it has since lost meaning as people are paying bride price for the sake of even marriage or even pleasing the in laws. The engagement of communities and policy makers in working t~wards mitigating the negative impacts of this practice must be undertaken. Bride price should not be deemed essential for the validity of customary marriages. If parties wish to give bride p!ice, they should be fi:ee to do so, but payment or nonpayment will have no effect on the sponses' relationship or on their rights to any children born of the marriage. The existence of a bride price agreement may be used to determine whether a union should be considered a customary marriage. 61 Because the giving of bride price will have no effect on the validity of marriage, it may be enforced only by the usual judicial processes. Courts granting divorces should have jurisdiction to order return of bride price subject to the deductions pe1mitted in customary law. Courts in both Uganda and other parts of Africa have long grappled with the problem of how to define a customary marriage. Payment of bride price could, of course, distinguish marriage from mere cohabitation, but as we have seen payment might be deferred or the reason for handing over livestock might be ambiguous. To cure the uncertainty of these situations, comis would then ask whether the blide had been transfened to her future husband's home or whether the relevant wedding rituals had been observed. According to all the systems of customary law in Uganda, marriage is patriorvirilocal, which means that a bride has physically to leave her natal family and go to live with her husband (either at his own or his father's homestead).This occasion would normally be accompanied by the performance of a traditional wedding ceremony. In fact, some degree of ritual attends marriage in any culture, for ritual has the general function of separating the socially significant from the mundane. In ce1iain Ugandan communities, a pmiicular ritual may be decisive in distinguishing mmTiage fi·om mere co-habitation. In order to define a customm·y marriage the transfer of the brid,e and/or the payment of bride price must be considered essential to the creation of a valid union. Nevertheless, as the constitution requires under Article 31, the most fundamental requirement of a valid mmTiage should be the consent of the spouses. Consent, however, is m1 abstract factor that n01mally has to be inferred from concrete acts. National Survey on Bride Price and Its Relation to Domestic Violence:As the most immediate step, there needs to be a Nationalsurvey on bride price and its relation to domestic violence. The survey must include key components that have not beenpreviously included in previous research surrounding theissue of bride price and its relation to domestic violence andmust seek to include as much as possible pa!iicipants from all ethnic groups to .ensure that the data generated reflects the views of all the diverse ethnic groups in Uganda. 62 The institutions involved in this survey should include ./ Women human rights NGO's ./ Ministry in charge of Gender I Culture ./ Uganda National Bureau of statistics ./ Ministry of finance and planning ./ Ministry of Justice and Constitutional affairs ./ Religious Organizations ./ Local and District Administration ./ Elders in the communities ./ Community members in the society pmiicularly thevulnerable groups like women. The data generated should then be analyzed and based on the findings come up with recommendations on the way forward in terms of identifying the legal and institutional framework to either ban, reform or regulate the practice of bride price, Once the analysis of the data is complete and recommendations are complete, the lead NGO should then convene a meeting with other likeminded NGO' S, Government ministries such as the Ministry i1; charge of Gender and Cultural services, and renowned anthropologists to develop a manual for civic education on bride price and how it perpetuates domestic violence. The lead NGO should then develop a clear framework for civic education on the bride price manual ensuring that the framework targets all levels of society from members of parliament through schools and grassroots levels. This will ensure that awareness creation is created on all levels. This will create the space for programmatic reforms which will include further training for law enforcement officials including Police and Chiefs on suitable methods of handling domestic violence in general and in pmiicular its relation to bride price. The bride price manual should in addition to outlining the ills' bf the practice of bride price provide for an acceptable alternative practice to that of payment of bride price. This may be in the form of a symbolic ceremony but one that inevitably does not involve the payment of any money or goods to the family of the bride as bride price. However great care has to be taken to ensure that a situation does not arise where the presentation of gifts (other than on account of 63 Bride price) to the family of the bride would render the giver of the gifts guilty of payment of bride price. All these programmatic reforms must be carried out against the l:Jitckdrop of either reforming or completely banning the practice of bride price and not with the objective of doing away with other positive cultural practices that are peculiar to marriage such as introductions of both families and the symbolic socialization that takes place thereafter. 5.8.1 Legal Reforms To begin the journey to legal reforms on the issue of bride price the following must necessarily take place: • Audit ofthe current Constitution, existing Laws on Maniage and the Marriage Act in order to identify the gaps in these laws. • Audit oflaws in other jurisdictions that have been successful in combating the practice of bride price. • Based on these audits come up with recommendations on whether to amend the same to include provisions on the mandatory registration of all customary maniages to accord legal status to the matTied women and their children within such marriages, bride price abolition, reform /regulation and thereafter resume aggressive lobbying for enactment of the same or • Altogether draft a Registration of Customary Marriages Bill to provide for the procedure and mat1datory registration of all customary maniages which will ensure the legal status of women and the children in such marriages. ,/ A Bride Price Regulation Bill which providt!s for regulation or abolition of bride price as the case may be and which provides for diil'erent bride price violations and strict penalties for offenders who commit such violations. Such a bill should also provide for special but simplified procedure which will allow for penal and civil remedies in cases of domestic violence in general and in relation to bride price in particular. Similarly such legislation should also provide for the forfeiture of property paid tp the family of the Bride as bride price. ,/ Lobbying for ratification of international and regional 64 ./ treaties which Kenya has signed but not ratified which outlaw domestic violence, Lobbying also for the signing, ratification and domestication of the Optional Protocol on the women rights. 5.8.2 Advocacy Campaigns i) Lobby Parliamentarians for the enactment of a bill on regulation of bride price or for the passing of amendments to the Constitution and Marriage Act to address bride price and provide for procedure for prosecution of offenders and penalties. Once a bill on bride price regulation is passed there should be immediate initiatives to step down the Act and conduct civic education. ii) Similarly there will also be a component of training for Police and Administration officers, judicial officers on the provisions ofthe proposed Act. iii) Incorporation of the Bride Price Manual in high school curriculum and introduction of the same as a course unit at the University Level. This will entail lobbying the Ministry of Education, Ministry in charge of Gender and Cultural activities and concerned institutions of secondary and Higher learning for their involvement in creating the syllabus to incorporate the manual both at the High school and University levels. Poverty Eradication:Poverty has been identified in this study as one of the factors that directly contributes to the commercialization of bride price. Govemment must therefore be pressurized to speed up implementation on its poverty reduction strategy in order to arrest in the long run the need for parents to make easy and quick money through early child maniages and exorbitant amounts of bride price. An immediate evaluation of the rate of government implementation of its economic recovery plan needs to be undertaken. Thereafter public awareness on the economic recovery plan needs to be created and it is through the platfom1 of public pressure that the government can be pressured to speed up implementation. Monitoring And Evaluation:The NGO'S involved in this initiative should develop effective monitoring and evaluation tools to monitor the impact of civic education on the general public, 65 the rate of successful and unsuccessful prosecutions under the proposed Act to regulate, reform or abolish bride price. 5.9 CONCLUSION I have in my research recognized right from the beginning that the issue of bride price is controversial. It remains an important traditional cultural practice and considered by many as a valuable aspect of their lives. However, since modernization the practice has been influenced by economic, social, and cultural changes and its historical integrity, benefits and significance has been affected. It is however the recognition that bride price could.result or exacerbate problems of exploitation of women and increase the economic burden on men which provides an opportunity for responsible actors to come up with a legal framework for the regulation of bride price. 66 REFERENCES REPORTS AND ARTICLES Bride-Price, Poverty and Domestic Violence inUganda -Final Report .Professor Gill HagueDr. Ravi Thiara -v:ith MIFUMI -July 2009 Baryomunsi, C. (2004) Gender dynamics and HIV /AIDS: Key issues for debate on bride price, Uganda UNFP A. Dalamia, S. & Lawrence, P.G (2005). The institution of dowry in India; why it continues to prevail. 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