PERSONS IN UGANDA

The Commission shall not investigate any matter involving behaviour, which is
considered to be—
(i)
(ii)
immoral and socially harmful, or
unacceptable by the majority of the cultural and social
communities in Uganda.
Parliamentary records reveal that the provision was introduced to prevent
‘homosexuals and the like’ from accessing the Commission by identifying with
minorities. 44 A constitutional petition seeking the Constitutional Court’s interpretation
of this provision, Jjuuko Adrian vs. Attorney General, 45 has been pending since 2009.
1.3.4 Laws on Marriage
All the marriage laws in the country provide for marriage between a man and a
woman. Article 31 of the Constitution not only restricts the right to marry to men
and women of 18 years and above but also specifically prohibits marriage between
same sex persons. The legislations governing marriage in Uganda are: the Marriage
Act Cap 251; the Customary Marriages Registrations Act Cap 248; the Marriage and Divorce
of Mohammedans Act Cap 252; the Hindu Divorce and Marriage Act Cap 250; and the
Marriage of Africans Act Cap 253. They do not contain specific prohibitions against same
sex marriages, but in light of Article 32A of the Constitution, no same sex marriage
can be celebrated under these laws.
In the case of transgender persons who have undergone sex change surgeries, it is
unlikely that they would enjoy the same rights as other individuals in marriage. This
is because as discussed above, the law in Uganda does not recognise sex change for
adults or change of gender. Therefore if someone undergoes a sex change surgery
before getting married, the marriage, the marriage would be likely to be void ab initio
as a marriage celebrated between persons of the same sex. This would be the same
thing if the person changed their sex in course of a marriage.
1.3.5 Laws on Divorce
The Divorce Act Cap 249 is the principle law that governs divorce in Uganda. Section
4 of the Divorce Act lists sodomy among the grounds for divorce. Use of this ground
to seek divorce has not been regular but it remains on the law books. According
to a study on the grounds of divorce in commonwealth jurisdictions derived from
English Law, the inclusion of sodomy, as the other grounds such as adultery, cruelty,
bestiality, among grounds for divorce is based on the fact that they are all criminal
offences under the Penal Codes in the different countries. 46 In fact it is opined that
so interlinked were the corresponding provisions in the criminal and the matrimonial
legislations in English and Indian law that the requirement for corroboration and
the high burden of proof usually applicable to criminal trials were also applied in
matrimonial causes. Thus sodomy as mentioned in section 4 of the Divorce Act is
derived directly from section 145 of the Penal Code and was intended to target one
and the same people. It is an extension of the discriminatory arm of penal law into
44 Parliament of Uganda Parliamentary Hansard 12th December, 2006.
45 Constitutional Petition No. 1 of 2009.
46 Virdi, PK (The grounds for divorce in Hindu and English Law, A Comparative study Motilal Banarsidass,
Indological Publishers and Book Sellers, 1972.
33