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

[51] Islamic Shari’ah aside, criminalization of adultery is a rarity in the postcolonial
African state. Among the countries surveyed, Cameroon is an exception to the
rule. Section 361 of the Cameroonian Penal Codes criminalizes adultery for both
husband and wife. A husband commits the offence only if he ‘habitually’
commits adultery whereas a wife need only commit adultery once. 530 Clearly,
Cameroonian law is discriminatory on the ground of sex.
[52] As discussed in Chapter 2 of this study, prior to judicial reform, Ugandan
divorce law discriminated against women in divorce cases where adultery was in
issue. In Uganda Association of Women Lawyers and Others v The Attorney General 531
the Constitutional Court of Uganda held that provisions of the Ugandan Divorce
Act which treated men and women differently contravened the equality clause -
article 21 - of the Constitution of Uganda on the basis of sex and gender. The
provisions in question required more by way of proof from a wife where she
alleged the husband’s adultery that was the case where the husband was alleging
the wife’s adultery. Also, the provisions conferred on the husband only a right to
claim damages from the co-respondent. In holding the provision to be
discriminatory, the Court said that equality was a core value under the
Constitution of Uganda and that the provisions in question were a colonial
vestige that reflect a time when the concept of family was patriarchal and women
where subservient to men.
[53] In Law Advocacy for Women in Uganda v Attorney General, 532 the Constitutional
Court of Uganda held that section 154 of the Ugandan Penal Code which treated
men and women differently in the definitional elements of adultery was
discriminatory on the basis of sex and gender as to contravene, inter alia, article
21 of the Constitution of Uganda. The relevant provision provided that ‘any man
who has sexual intercourse with any married woman not being his wife commits
adultery’, while on the other hand it provided that ‘any married woman who
had sexual intercourse with any man not being her husband commits adultery’.
The provision privileged males in that adultery could only be committed if the
co-adulterer was a married woman.
[54] Under Shari’ah, as practised by states in the northern part of Nigeria, adultery –
Zina 533 - is an offence which is punishable by death with stoning. The sentence of
death for adultery has been passed in a number of cases though it has never been
carried out. Two examples can be given. In Commissioner of Police Sokoto v
530 Section 361 of the Penal Code (Cameroon).
531 Uganda Association of Women Lawyers and Others v The Attorney General, Constitutional Petition No 2 of
2003 (2004) 1 (Constitutional Court of Uganda).
532 Law Advocacy for Women in Uganda v Attorney General, Constitutional Petition Numbers 13/05 and
05/06 (2007) 1 (Constitutional Court of Uganda).
533 Zina includes adultery which is punishable by death with stoning and fornication which attracts
whipping.
154