A very long time ago, on 7th May 1977 (about 5 years before I was born), a man known as Zedekia Karokora married a lady known as Kellen at Kihanga Church of Uganda. The two must have known some marital bliss, as the couple did have some children together.
Nevertheless, as sometimes happens, a bit of trouble appears to have arisen in paradise. In fact, according to Zedekia, it was a lot of trouble. In 2020, some 43 years after the marriage was celebrated, he filed for divorce in the High Court of Uganda. In so doing, the relationship between Zedekia and Kellen became a matter of public record, documented as Zedekia Karokora v Kellen Karokora, Divorce Cause No.20 of 2020. In his divorce petition, Zedekia recounted a tale of woe.
Among other things, he claimed that he had been denied conjugal rights since 1999; that Kellen had stopped talking to him in 2000; that she habitually abused and humiliated him in the presence of their children and guests; that she had turned their children against him so that they no longer greeted or showed him any other form of respect; that Kellen only prepared food for herself in their home while he had to prepare his own food; that she had taken to witchcraft and had also labelled his own relatives as witches; and that neither she nor their children showed any care for him on the occasions he was sick.
If true, Zedekia’s account would give full meaning and credence to the name of that one-time presenter on Uganda Television (now known as Uganda Broadcasting Corporation) who was called Mike Makamazibu (essentially meaning ‘marriage is difficult’).
For her part, Kellen denied the substance of Zedekia’s allegations. In her telling, she had always treated him with ‘kindness, care and love’; had never abused him or treated him cruelly; and that she was a ‘caring, loving wife and mother in all respects’. She asked the court not to grant the divorce.
Judgment in this case was finally handed down last week, on 18th August 2023. In it, the High Court opined that the law required that adultery be alleged and proven as a condition for the grant of divorce. To the Court, even if Zedekia’s allegations of cruelty and desertion had been proven, he was not entitled to a grant of divorce since he had neither alleged nor proven adultery on the part of Kellen.
The result is that Zedekia Karokora remains legally married to Kellen Karokora. This decision has caused significant consternation in the legal community, since it appears to unsettle what appears to have been a long-held understanding of the law following the decision of the Constitutional Court in Uganda Association of women Lawyers (FIDA) & 5 Others v Attorney-General (Constitutional Petition No.2 of 2003).
In that case the Court found Section 4 of the Divorce Act to offend Article 21 of the Constitution (on non-discrimination) in so far as it permitted a husband to petition for divorce on the single ground of adultery, while a wife had to couple adultery with another ground, such as incest; bigamy; ‘marriage with another woman’; rape, ‘sodomy’ or bestiality; cruelty; and desertion without reasonable excuse for more than two years.
Some confusion followed this decision, as lawyers and judges alike wondered whether both husbands and wives were now required to prove both adultery and another ground, or whether adultery as a single ground could be relied on by either party. In the end, case law seems to have favoured the latter position (see, for instance, Proscovia Namuyimbwa v David Ralph Pace Divorce Cause 14 of 2017 and Sarah Kiyemba v Robert Batte Divorce Cause 127 of 2018).
Indeed, later on, case law evolved to an even more liberal position, with a string of cases allowing a party to rely on a single ground (other than adultery) as a basis for divorce – and some judges invoking the holistic ground of ‘irretrievable breakdown of marriage’ to allow parties to move on from clearly dead unions (see, for instance, Joweria Namukasa v Livingstone Kakondere Divorce Cause 30 of 2010; Gershom Masiko v Florence Masiko Civil Appeal 8 of 2011; Julius Chama v Specioza Rwalinda Mbabazi Divorce Cause 25 of 2011; and Julius Rwabinumi v Hope Bahimbisomwe Civil Appeal Divorce Cause 30 of 2007).
It is for this reason that the Zedekia decision appears to be out-of-step with the consensus formed following the FIDA case. In so doing, the High Court referred to a 2020 decision of the Court of Appeal – Rebecca Nagidde v Charles Mwasa (Civil Appeal 160 of 2018). In my humble opinion, the Nagidde decision does not support the finding in Zedekia.
In Nagidde, the Court of Appeal only insisted on the need for the Court to satisfy itself that the petitioner’s grounds for divorce as presented had actually been proven; that there had not been any connivance or condonation or collusion between the parties in presenting the petition; and that the petitioner had not been guilty of adultery, or of an unreasonable delay in presenting the petition, or cruelty to the respondent, or desertion or separation or other misconduct.
In fact, at Paragraph 13 of its decision, the Court of Appeal in Nagidde expressly observed that, following the FIDA case, ‘it [was] sufficient for either spouse to allege one ground for divorce as set out in Section 4 of the Divorce Act for a petition or cross petition to succeed’.
I can thus understand the general surprise following Zedekia. Nonetheless, for me, the decision is important in terms of highlighting a more fundamental and pressing issue – the need to completely abandon a fault-based system for divorce. I have expressed my views in this regard more elaborately in an article, published in the 2021 edition of the African Human Rights Law Journal, entitled ‘The right to “unlove”:
The constitutional case for no-fault divorce in Uganda’. In it, I suggest that a fault-based divorce system violates a number of human rights guaranteed under the 1995 Constitution – rights enjoyed not just by the particular individuals involved but a whole range of other persons including their children, siblings and other relatives.
One of the critical rights implicated is that to privacy, established under Article 27 of the Constitution. In the Zedekia case, for instance, can anyone really suggest that there is any strong public interest served by the entire Ugandan public knowing that he and Kellen have not had sex since 1999, or that he has to cook separate meals for himself?
Clearly, the requirement for him to have had to expose such intimate details of their domestic life impacts not only on his privacy and that of his wife Kellen, but that of their children, wider family, relatives, friends and in-laws. Matters are even more complicated where adultery is one of the grounds at play, since under the law as it stands, the co-adulterer has to be specifically named (alongside various other lurid details required to affirmatively prove the ground) – thereby affecting of a whole range of otherwise blameless persons, such as that other person’s spouse, children, relatives and other associates.
The fault-based system also, in my view, ultimately violates the rights to expression and association (Article 29) and to liberty (Article 23). Perhaps on account of our troubled history as a country, we usually think of these rights as belonging to the political realm. However, they have equal – if not greater –application in our intimate lives. At its core, marriage is the culmination of a relationship between two free individuals.
As the expression of mutual intention – through the exchange of vows indicating such consent – the two individuals enter into a marriage union. If these persons who freely enter marriage now wish to lead separate lives (for whatever reasons), why should they be required to convince a third party – a judge (however learned, erudite or eminent) – that they ‘deserve’ to regain their freedom to associate with other persons?
Why should these two persons now be obliged to separately seek out the services of lawyers, and have these ‘learned friends’ draft and file long documents, obtain hearing date, and then proceed to argue long and hard as to why two individuals who once loved each other but now feel differently – should be permitted to lead their separate lives as individuals. There is something deeply ludicrous about this (the time, expense and inconvenience not even considered).
Of course, the injustice of this scenario becomes even more evident when – as in the case of Zedekia – after all this struggle, the court still refuses to let the individuals exercise their rights to individual autonomy, association and liberty. This is especially problematic given the centrality of consent as a basis of many legal relations. As the Latin maxim – eodem modo quo oritur, eodem modo dissolvitur – informs us, a fundamental tenet of the law is that any relationship can generally be dissolved in the same way it was created.
Thus, what arises out of consent, can and must be amenable to dissolution by consent. There are a whole range of other sound legal and constitutional reasons why Uganda should adopt a no-fault divorce regime – many of which are covered a bit more extensively in the journal article referenced above. Indeed, several countries around the world now recognize and permit some version of a no-fault divorce.
These include South Africa (1979 Divorce Act); Tanzania (sec 99 of the Law of Marriage Act); Sweden (1973 Marriage Code); Spain (Law 15 of 2005, amending the Civil Code and the Civil Procedural Act); France (Law 75-617 of 11 July 1975); Australia (1975 Family Law Act); China (1980 Marriage Law); Canada (1968 Divorce Act); Venezuela (decision by the constitutional chamber of the Supreme Tribunal of Justice 6 June 2015); Ireland (sec 5 of the Family Law (Divorce) Act); the United Kingdom (Divorce, Dissolution and Separation Act of 2020; and the USA (each of the individual states now offers some kind of no-fault divorce).
Kenya, too, seems to be moving in this direction, with the tabling – on 4th August 2023 – of the Marriage (Amendment) Bill, which among other things, seeks to introduce mutual consent as an avenue for divorce under Section 75 of the Marriage Act.
Nonetheless, all law and legalese aside, we need to recognize that real human beings – like Zedekia, Kellen, their children and relatives – are affected by a problematic divorce regime, which encourages adversarial litigation over amicable settlement of intimate misunderstandings.
I cannot help but think of the various exhortations by the Lord to the Egyptian Pharaoh in Exodus, asking him to ‘Let my people go’. Ugandan law (and its lawyers and judges), should let Zedekia (and Kellen) go.
The writer is senior lecturer and acting director of the Human Rights and Peace Centre at the School of Law, Makerere University, where he teaches Constitutional Law and Legal Philosophy.
Source: The Observer
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