sexual health and human rights in the african region - The ICHRP

Heterosexual marriages are also privileged by customary and religious laws.
African Constitutions are generally silent about the sex or gender requirements
of marriage. Among the jurisdictions that were surveyed, Uganda is an exception
to the rule in addressing sex or gender requirements of marriage. The Ugandan
Constitution provides that ‘marriage between persons of the same sex is
prohibited’. 515 The proscription against same-sex marriages in the Ugandan
Constitution came as an amendment to the Constitution as part of a wave of
official opposition against any demands to decriminalize same-sex activities. 516
Prior to its amendment, article 31(1) of the Constitution of Uganda provided that
‘men and women of the age of eighteen years and above have the right to marry
and to found a family …. ’ This provision could be interpreted to recognize the
rights of heterosexual as well as same-sex couples. The amendment removes the
ambiguity.
[39] In Minister of Home Affairs and Another v Fourie and Others (the Fourie Case);
Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others;
Lesbian and Gay Project and Others v Minister of Home Affairs and Others (the
Equality Project Case) 517 the Constitutional Court of South Africa was asked to
determine the constitutionality of the definitional exclusion of same sex marriage
in the statutory and common law of South Africa in a consolidated appeal. In the
Fourie case, the applicants were two women who were same-sex partners. For
more than a decade they had lived together and set up a home. They had
undertaken mutual obligations of support. They wanted to obtain formal public
recognition and registration of their relationship, but were precluded from doing
so by the common law definition of marriage.
[40] The common law definition of marriage in South Africa provided that marriage
is ‘a union of one man with one woman, to the exclusion, while it lasts, of all
others’. 518 Common law is not self-enforcing. For a marriage to be solemnized, a
marriage rite had to be performed under the Marriages Act of 1961. 519 Section
30(1) of the Marriage Act only accommodates the solemnization of a marriage
where the parties are seeking to be ‘husband’ and ‘wife’. The argument of the
applicants in the Fourie case was that the common law definition of marriage and
section 30(1) of the Marriage Act constituted unfair discrimination and were,
515 Section 31(1) of the Constitution of Uganda; JD Mujuzi ‘Absolute Prohibition of Same-Sex Marriages in
Uganda’ (2009) 23 International Journal of Law, Policy and the Family 277.
516 Mujuzi ibid.
517 Minister of Home Affairs and Another v Fourie and Others (the Fourie Case); Lesbian and Gay Equality Project
and Others v Minister of Home Affairs and Others; Lesbian and Gay Project and Others v Minister of Home
Affairs and Others (the Equality Project Case2006 (3) BCLR 335 (Constitutional Court of South Africa).
518 See for example: Mashia Ebrahim v Mahomed Essop 1905 TS 59 (Transvaal Supreme Court, South Africa);
Hyde V Hyde and Woodmansee 1866 LR 1 P (Court of Probate and Divorce, England); Seedat’s Executors v
Master (Natal) 1917 AD 302 (Appellate Division of South Africa); Ismail v Ismail 1983 (1) SA 1006 (High
Court of South Africa).
519 Act No 25.
150