Author: Professor Chuma Himonga
Holder of DST/NRF Chair in Customary Law, Indigenous Values and Human Rights, at the University of Cape Town.
Mifumi was decided by the Supreme Court of Uganda. It was an appeal from the Constitutional Court where the constitutionality of “bride pride” was challenged at first instance. For our purposes we use the term lobola or lobola (the term commonly used in Southern Africa) instead of the term “bride-price” used in the proceedings, which the Supreme Court rightly found unsuitable.
Mifumi dealt with a very important custom in customary marriage - the payment of lobola towards the institution of a marriage, and its repayment at the conclusion and dissolution of a marriage. This custom is one of the most contested aspects of customary marriages from the perspective of women’s rights. However, some of the issues raised by this decision will not be addressed here because they are beyond the scope of this commentary. This commentary is a short reflection on the decision and on some issues that arise from the adjudication of customary law based on recent research in South Africa on how the Recognition of Customary Marriages Act of South Africa of 1998 (RCMA) operates in practice. The relevance of this research to the case under review is that it investigated the issue of lobola and its regulation by the RCMA, a statute that was designed to, inter alia, secure the human rights of women in marriage in post-apartheid South Africa. Moreover, both South Africa and Uganda give customary law and cultural rights a considerable degree of constitutional recognition. The two countries may therefore have something to learn from each other about legal reforms directed at the protection of women’s rights.
Mifumi Ltd is an NGO and a women’s rights organisation operating in Eastern Uganda. Together with 12 other people, it brought an application to the Constitutional Court (CC) challenging the constitutionality of lobola as a requirement for a valid marriage and the return of lobola as a condition for the dissolution of the marriage.
The CC dismissed the petition and held that the marriage custom in question was not unconstitutional.
The petitioners appealed on essentially four grounds (condensed from 12 grounds), inter alia that (a) the CC erred in law when it failed to make a declaration that the demand for, and payment of lobola fetters the free consent of persons intending to marry contrary to Article 31(3) of the Constitution, which provides that the free consent of prospective parties to a marriage in that the demand for lobola makes their consent contingent on the demands of a third party; and (b) the CC erred in law when it declined to declare the demand for a refund of lobola unconstitutional.
The Supreme Court held that lobola does not fetter the free consent of persons intending to get married and, consequently, is not in violation of Article 31(3) of the Constitution. It, however, held that the custom of refunding lobola as a condition for the dissolution of customary marriage is unconstitutional and violates Articles 31(1) and (2), and is accordingly prohibited.
In sum, the Court abolished the repayment of lobola as a condition for dissolution of a marriage. Essentially, this judgment confirms that lobola has both positive and negative consequences with respect to women’s rights.
The findings of our study, mentioned above, broadly correspond with the decision of the Supreme Court in three respects. First, the study found that in interpreting the RCMA the courts hold lobola to be a core requirement of marriage. This view on lobola corresponds with the practices of the people. This is despite the fact that the RCMA does not explicitly and directly include lobola as a requirement for a valid customary marriage but instead leaves it to deduction from, and interpretation of, the requirement that in order to be valid a marriage must be negotiated and entered into in accordance with customary law. The exclusion of lobola from the RCMA’s explicit requirements for concluding a valid marriage was intentional and aimed at protecting the rights of women. However, the research finding reveals that it remains an integral part of the people’s practice. Secondly, the research found that both women and men support the requirement of lobola for the conclusion of a customary marriage. Moreover, the study found existing research documenting the fact that some women who adhere to the lobola custom considered the practice as a source of symbolic capital connected to ‘grounded’ notions of women’s right to dignity and respect. Thirdly, like the Supreme Court in the case under review, the study found some negative aspects of lobola, such as those contributing to the processual nature of a customary marriage in which the legal status of some marriages remain in limbo for long periods of time, to be disadvantageous to women in such marriages.
These findings reveal three implications for the enforcement of laws that seek to abolish lobola, and, for the adjudication of customary law generally. The first implication pertains to the legal prohibition of the payment of lobola which may not be readily enforceable among people who are subject to customary law. While state law, such as court decisions and legislation may influence change in living customary law (i.e. the customary law that regulates the lives of people on the ground), in most cases the change is either slow or remains as just paper law.
Secondly, courts and advocates for the abolition of lobola (and perhaps of other customary practices), in order to protect women’s rights should take cognisance of the fact that women who are subject to customary law are not a homogenous group and may prefer the continuing practice of the customary rule sought to be abolished. Courts should therefore be cautious of making decisions without considerations for particular circumstances of customary law adherents. The effect of such decisions could have negative impact on some women while protecting the interests of others.
Thirdly, customary law may have positive and negative effects on women’s rights. This suggests that when courts adjudicate on customary law issues, particular consideration should be given to the need for the preservation of positive customary practices. Justice is not achieved when positive elements of customary law are abolished in favour of other components of the legal system which are accessed by only a few. The approach adopted by the Supreme Court is commended as it, in effect, takes these points into account. Moreover, it is in line with the increasing constitutional recognition of customary law in African legal systems.
In conclusion, the Supreme Court decision provides an opportunity to reflect on broader issues concerning the resolution of conflicts between customary law and women’s rights. We submit that while customary law, like any other law should not be exempt from demands for compliance with human rights, the approaches courts take to align it with these rights should not lose sight of the critical role customary law plays as a source of law and justice for the majority of people on the Continent. In the same vein, courts, legal professionals and human rights advocates need to pay close attention to the implications of reforming customary law. How customary law works on the ground level of society should be an important consideration for anyone concerned with the alignment of customary law with human rights.
 Constitutional appeal no:2 of 2014 (hereafter Mifumi), available at http://www.ulii.org/ug/judgment/supreme-court/2015/13/
 See C Himonga & E Moore Reform of Customary Marriage, Divorce and Succession Living Customary Law and Social Realities (2015, Juta & Co).
 These sections provide for equal rights for adult men and women to marry and to found a family and to equal rights in marriage, during marriage and at its dissolution, and for the dignity of women.