WOMEN IN PRIVATE LAW

It is proposed first to consider women’s rights in general in systems of customary law in Africa, with reference to the need for law reform; secondly, a more detailed examination will be given to the remarkable situations which result from the conflicts between different systems of law coexisting territorially—taking one territory, Uganda, as a some­what extreme example of the need for law reform in this respect.

It would be futile to generalize about the status of African women in customary law. Even where there is a common religion with its own legal system, such as Islam, striking differences occur. Thus, of the Kanuri Botting writes as follows:

‘The position of women in Bomu society is much freer than in most Muslim countries, for the veil is unknown and seclusion in the house of parent or husband is much rarer. Women may dance in public with men, walk freely around the streets and talk openly with anyone they choose, and they play an active and significant part in ordinary day-to- day business, especially on market day. Women in Bomu are not usually regarded as either chattels, slaves or beasts of burden, and the

* See W. Clifford, Crime in Northern Rhodesia, i960, Rhodes-Livingstone Communication No. 18, pp. 72-3.

Kanuri’s prime occupation of agriculture is shared by both men and women.’^[50]

But in Muslim societies where the rule of the seclusion of women is strictly followed, men are responsible for all agricultural labour. And in Zaria and Nupe, in Nigeria, men in practice do the major part of the work of cultivating, the degree of seclusion in the former depend­ing upon the agreement made at the time of the marriage.¹

Other differences occur between different societies as a result of different ethnic backgrounds and history, and different political and economic systems (thus the herding of cattle in pastoral societies tends to be exclusively a male prerogative, except for the domestic beasts such as sheep and goats).

On the other hand, in many matrilineal societies the husband commonly goes to live with his wife and her family, at least during the early years of the marriage. His position there³ is inevitably different from that of the husband in a patrilineal society whose wife must normally join him at his home and may often visit her own relatives only with his permission (which should not, however, be unreasonably withheld).

To discuss the position of women in customary law is to discuss the position of women in marriage, for spinsterhood was a rare thing in traditional societies. But in the changed economic circumstances of today the unmarried woman may attain a status in independence superior to her married sister:

*... the free-lance woman may forfeit respectability and general esteem, yet can undoubtedly win an economic and jural status as an independent business woman and property owner which is not open to her respectable sister.’¹

A commonly expressed view in the past has stressed the inferior position of wives of customary law marriages.

‘The inferior status of women is believed to be evident in the institution of polygyny (and still more of polyandry where it is found), child betrothal, the inheritance of widows and all procedures whereby women can be disposed of in marriage without their consent;....’²

The general nature of African marriage is sometimes seen as subordin­ating the individuals to the wider families and their interests.

Were both husband and wife subordinated in this way it would not necessarily involve a diminution of the wife’s rights compared with those of her husband; but in South Africa it is alleged that the subord­ination in fact affects the wife more particularly. Indeed, a modem authority maintains that the bride is not even recognized in law as a party to the contract of marriage?

‘Forced marriage*, often connected with child betrothal, has been alleged to be typical of customary law. Free consent to marriage is one of several matters incorporated in a Draft Convention relating to the formation of marriage and adopted by the Third Committee of the United Nations General Assembly in December 1961. After recalling Article 16 of the Universal Declaration of Human Rights, and an earlier resolution of the General Assembly declaring certain customs, ancient laws and practices to be inconsistent therewith,

¹ A. Southall, ‘Introductory Summary’, in Social Change in Modern Africa, edited by Southall, 1961, p. 22..

¹ Mair, op. cit., p. 7.

³ A. Phillips, ‘An Introductory Essay’, in Phillips (ed.), Survey of African Marriage and Family Life, 1953, p. XV.

⁴ Phillips, op. cit., p. xvii.

³ S. M. Seymour, Native Law in South Africa, 2nd edition, i960, p. 77.

the preamble reaffirms that all states should take appropriate measures to abolish such customs. The substantive articles follow: ’Article i. No marriage shall be legally entered into without the full and free consent of both parties, such consent to be expressed by them in person after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses, as prescribed by law.

Article 2. States parties to this convention shall take legislative action to specify a minimum age for marriage. No marriage shall be legally entered into by any person under this age, except where a competent authority has granted a dispensation as to age, for serious reasons, in the interest of the intending spouses.

Article 3. All marriages shall be registered in an appropriate official register by the competent authority.’¹

Each of these articles calls for measures of reform of the law in different parts of Africa. Allegations of forced marriages have in the past given rise to considerable concern and public discussion, leading on one occasion to a notable general investigation by the Secretary of State for the Colonies.² The nature of the subject, however, complicates investigation and conclusion. It is obviously difficult (in any society) to analyse the degree of ‘freedom’ with which a person consents to marry—pressure of various kinds may operate in different degrees, much of it not realized even by the person concerned. Investigation may be misled by the recurrence in many African societies of the custom of ritual, formalized resistance to the marriage by the bride who may, or may not, at heart be content with the match. There are well-documented individual cases of girls fleeing from husbands whom their parents have chosen for them, often no doubt because of an affectionate attachment for another. One aspect of law reform in this matter might well be to improve the legal mechanisms for overriding the unreasonable refusal of parents or guardian to consent to a match desired by the daughter herself. But in the villages of Africa the day has not yet come when young daughters will readily invoke the aid of local judicial authorities to defy their parents’ wishes. A good precedent for legislation exists in that part of the Somali Republic which was formerly British Somaliland? Phillips concludes that ‘general legisla-

* Adopted by the Third Committee on December 14,1961.

² The White Paper documenting this investigation is Correspondence relating to the Welfare of Women in Tropical Africa 1935-37, 1938, Cmd. 5784.

³ Natives’ Betrothal and Marriage Ordinance, Cap. 67, section 3 (a), which gave a woman the right to register her refusal of a betrothal.

tion on this subject is perhaps in itself of slight value’ but he cites some other examples of enactments.¹ The Natal Code of Native Law requires a public declaration by the bride of her free consent,¹ and in other parts of the Republic of South Africa where there is no express legislation the courts on grounds of public policy require her consent for the validity of a customary union;³ agreements by parents for the subsequent marriage of young children are void, but subsequent ratification by the partners will validate the union from the date of such ratification.⁴

If there is any doubt as to the need to deal with this problem, reference may be made to some of the tragic cases recorded in African Homicide and Suicide* Two cases among the Luo of Kenya emphasize that conflicts of wills in this matter may lead to bitter consequences. *A very young girl, little more than a child, objected in the traditional way to the union which her parents had arranged. The parents insisted that she be sent or “dragged” to her husband. On the night of the ceremonial defloration she committed suicide by hanging... Her mother was so struck by grief that she committed suicide later.’*

In another case, a girl, when she was three years old, had been promised by her father to his friend. The girl was well educated (her father being a headmaster) and fell in love with a teacher at another school. He begged her father to allow him to marry the girl, asking to be permitted to return the bride-wealth animals the father had already received. The father refused. On the night before her wedding to her betrothed, the girl ran away to join the young teacher; he was arrested, but his brothers took the girl to Nairobi.

¹ Op. cit., pp. 203-5.

* Section 59 (1). Section 29 of Cape Proclamation 140 of 1885 makes it unlawful ’for any person to compel any woman to marry against her wish’.

¹ Sila v Masuku, 1937 N.A.C. (T. & N.) 121, cited by Seymour, op. at., p. 73; see also the cases cited by Phillips, op. cit., p. 205.

⁴ Seymour, op. cit., p. 74.

⁵ Edited by Paul Bohannan, i960.

‘ G. M. Wilson, ’Homicide and Suicide among the Joluo of Kenya* in African Homicide and Suicide, ed. Bohannan, pp. 205-6.

obliged to return the girl to her father and ask for a divorce. Instead of returning home, the girl joined her sweetheart in Nairobi; it was her father who hanged himself in a classroom in his school, in shame and humiliation. But his last act was to write letters to those involved blaming his daughter for the tragedy.¹

This case is of particular interest because the girl’s action in running away was the last traditional way for her to assert her refusal of an unwanted match. By Luo customary law, the elopement would have been justified and legal. But the modem increase in illegal unions forces African courts to deal severely with young couples who run off possibly to evade bride-price obligations.

The question of forced marriage is of course intimately connected with the point dealt with in article 2 of the Draft Convention. In general, ‘governments have... shown caution and even reluctance’^{[51] [52]} to legislate for a minimum age for customary marriage. For many reasons it is often thought that such a reform would be unenforceable. In particular, child betrothal rather than child marriage may be the problem. A general provision in the French territories stipulated minimum ages of 14 for women and 16 for men.^{[53] [54] [55] [56] The Penal Code of Tanganyika makes it an offence for a husband to have sexual inter­course with a wife under twelve years of age, but it expressly does not affect the validity of marriage under that age where consummation is postponed? This may merely reflect customary law. In Buganda, ‘it was an abomination (kiwe) to have sexual intercourse with a girl before her puberty’.’In other societies, girls could marry only after completing the initiation ceremonies which took place at or after puberty. But it is clear that in some societies child betrothal was common.*}

The third article in the Draft Convention refers to a matter which has been the subject of considerable discussion for many years. Should registration of customary marriages be introduced? If so, what should be the effect of registration? If registration does not affect the validity of the marriage, provision for it may be relatively ineffective; if registration is made essential for validity, this amounts to the introduc­tion of a compulsory non-customary solemnization.⁷ But it is difficult women’s status and law reform

to see how any other reform in the customary laws of marriage, or in resolving conflicts between different systems of marriage, can be effective without this initial regulatory step. The article quoted above was passed by the Third Committee with no opposing votes (though there were seven abstentions). The Report of the Committee’s discussion includes the following:

‘The importance of registration of marriages as a protective measure, particularly in the developing countries, was recognized. One repre­sentative, while pointing out that the trend in her country was towards registration, emphasised that customary law had applied there for over one thousand years, and that education to the idea of registration must necessarily take time.’¹

The present writer was present in the Lukiko of Buganda in i960 when that all-male assembly overwhelmingly (and not for the first time) rejected a motion for registration.

Two features common to marriage under most systems of African customary law are of vital significance; and yet their ultimate effect on the position of women is open to endless inconclusive debate. These are the polygamous nature of marriage by customary law and the economic exchange, whether by cash, livestock, goods or services, which generally characterizes the inception of such marriages—the ‘bride-price’.

‘Africa remains a continent of polygamy. Polygyny is the undoubted goal of men in rural society, though comparatively few reach it until their later years.’²

Southall points out that where economic change has undermined the traditional basis of the compound polygynous family, the old norms and values have found new expression in successive monogamy or a combination of monogamy with concubinage. Moreover, he sees the movement towards equality of status for women as having this result: that of those few women who do not remain subject to the traditional sanctions of rural life, many demand the right, which men enjoy, to have a number of sexual partners?

By way of deferring this problem, it is often stated that economic and other changes will abolish polygamy in due course. This view may be based on a mistaken assessment of the extent of polygamy in ancient

¹ Report of the Third Committee, December 14,1961, para 12.

¹ Southall, op. cit., p. 52. ³ Op. cit., p. 53.

times. In the course of his detailed study,^[57] Dorjahn concludes that ‘lack­ing the necessary quantitative data, one can only say that no certain overall tendency toward increase or decrease is discernible for sub­Saharan Africa during the last forty years’? His tables show that the incidence of polygamy is lower in southern and eastern Africa than in the Congo and western Sudan; it is highest in the Guinea Coast. ‘In general, the data show that about 35 per cent of all married African males are polygynous, that this 35 per cent averages about 245 wives per 100 polygynously married men (or households), while the number of wives to 100 husbands, monogamously and polygamously married, is about 150’?

Whatever the effect of polygyny upon the position of women, even when practised merely to this limited extent, it has often an unfortunate effect upon the status of young men who may, by reason of competition for brides from older, more prosperous polygamists, be obliged to postpone their own marriages. Dorjahn suggests that it is the dif­ference in the mean ages of first marriages of men and women which provides the surplus of women who serve as second or subsequent wives? This is the sort of factor with which the law cannot deal—no one would suggest a maximum as well as a minimum age for marriage.

Phillips cites legislation prohibiting polygamy:⁵ a Belgian Decree withheld recognition from polygamous marriages contracted after 1950. In Angola permanent residents in towns were forbidden to marry polygamously: apart from penal sanctions, polygamous Africans were disqualified from employment in government service. Schapera records legislation by Tswana chiefs prohibiting polygamy without the chief’s permission to men of the two junior age regiments. This is enforced by annulment of the second marriage and punishment, but Phillips points out that it falls far short of a general ban, merely restricting polygamy to old and middle-aged men?

Other legal measures may discourage polygamy: e.g. differential taxing provisions. Phillips emphasises the importance of providing an alternative form of legally binding monogamous marriage for those who wish for it⁷—an alternative not yet available to Africans in

Northern Rhodesia where the need for reform on this point seems urgent? Here the option of statutory marriage is not available to Africans, and even if they have a religious ceremony an African couple can enter into a customary law marriage only. It might well be argued that, if a couple avoid fulfilling the requirements of cus­tomary law (which otherwise would be the law of their marriage) and marry in Christian form in church, they will have contracted a valid common law marriage, no local form of monogamous marriage being available to them. The obstacle to be surmounted by such argument would be the reply that local legislation expressly withheld monogamous forms of marriage from persons of this class. Phillips also refers to the possibility of African courts giving effect to express promises of monogamy in marriage contracts, a precedent for which is found in Islamic law? In the English Court of Appeal, Harman, L.J., has suggested this possibility to the Ghanaian wife of a customary marriage according to Ghanaian law, whose application to an English magistrates’ court for a maintenance order against her husband was held to be outside the jurisdiction of English courts, which cannot give matrimonial remedies in cases of even potentially polygamous marriages?

Except for the minority expressing definite Christian or moral con­victions, there does not appear to be a clear-cut demand from educated African women for the general prohibition of polygamy at present. Under existing economic conditions, where wives are so often responsi­ble for cultivation of both food and cash crops, the wife without co-wives may find herself at a serious disadvantage. Views of parti­cipants in the U.N. Seminar in i960 were clearly divided, but it is recorded that ‘the great majority of participants agreed that polygamy was undesirable and outmoded’?

Clearly, when it is felt that public opinion will support such a measure, it is possible to legislate simply for the prohibition of polygamy, as was done in India by the Hindu Marriage Act, 1955. (Similar provisions have been introduced for Hindu marriages in Uganda, for which no previous provision had been made despite the presence of a large immigrant Indian community.)³

¹ By section 47, the Marriage Ordinance, Cap. 109, does not apply to ‘natives’.

² Op. tit., p. 194. ³ Sowa v Sowa, [1961] a W.L.R. 313, 318.

⁴ U.N. Seminar on the Participation of Women in Public Life, Addis Ababa.

i960.

⁵ See now the Hindu Marriage and Divorce Ordinance, 1961. For other examples, see Anderson, Islamic Laws in the Modern World, 1959.

Views about bride-price are similarly conflicting and uncertain, partly reflecting the different nature of this factor in different areas today as a result of local developments. At this time it is unnecessary to commence a discussion of the real nature of marriage payments in traditional customary law; that they performed a valuable function, and did not amount merely to a purchase of the bride, is scarcely open to doubt. Modem changes seem to have had effects differing consider­ably, but producing inter alia two opposite extremes: in societies such as Buganda the bride-price has become a formal token or ritual transfer, not inflated in amount and often not recovered on dissolution of the marriage; in other (often pastoral) societies the amount of bride-price has been proportionately inflated—some would say commercialized—leading to real abuse. It is ironical that in such societies the bride-price may have tended to become in modem times the thing it was originally thought to be by early observers, a means of purchasing a wife. Few would doubt that in many areas reform of the law is called for; but views would be divided on the nature of that reform.

Where a maximum limit for marriage payments has been fixed by law it has in practice often been evaded—perhaps wholesale as among the Iteso of Uganda, who find it profitable to pay the legal penalty of a 150 shilling fine in the unlikely event of detection.¹ But among the Ngwato of Bechuanaland, a chiefs edict prohibiting bride-price appears to have been effective.¹

The Committee set up by the Government of the Eastern Region of Nigeria in 1954 ‘to investigate the social effects of bride-price and to make... recommendations’ reported that inflation of the payment forced men and women to postpone marriage, and increased prostitu­tion and the number of children bom outside wedlock. £50 for an illiterate girl and three or four times that sum for one well educated were quoted as examples of payments made. But the Committee did not include abolition among its recommendations—the mere sugges­tion having been generally received with consternation; it did recom­mend limitations on the amount of the ‘dowry’ and marriage expenses, with registration to include the recording of the details of the payments agreed and made. Participants in the i960 U.N. Seminar were divided on this matter. So too were the women who took part in the Uganda Council of Women Conference in i960, and who did not

¹ See Lawrance, op. cit., pp. 202-3.

² I. Schapera, A Handbook of Tswana Law and Custom, 2nd edition, 1955, pp. 145-6.

recommend abolition of the payment of bride-price but did recommend abolition of the refund of the payment on divorce. Unfortunately, such refund is still often the equivalent of the ‘decree’ of dissolution and it is not clear what would be substituted for the refund as a mark of divorce. Perhaps the best proposal comes from the meeting of the J.N.C.I.D.I. on ‘Women’s Role’:

‘In regions where customs provide for the payment of dowry, legis­lation should have as a principal aim ensuring that the new family itself shall be the beneficiary.”

As a basis for law reform, the transfer of the benefit of the bride-price rather than its total abolition would certainly be more likely to command general acceptance.

With several other topics of law affecting the position of women there is not room to deal here. Property rights are obviously of fundamental importance; here again it is impossible to draw general statements valid for the different systems of customary law. Matri­monial property regimes, for example, vary from the typical South African ‘native law’ system under which the wife has no individual right to own property, everything acquired by her belonging to her ‘House’ within the wider polygamous family, which is controlled by her husband, to (at the other extreme) the separation in law of the property of the spouses among the matrilineal Akan of the Guinea Coast. Central African peoples seem to occupy appropriately a mean between these extremes, the wife’s property being kept distinct and the husband’s strict rights being modified by everyday practice: thus among the Nkundo the husband can claim the proceeds of the sales of objects made by his wife, but in disposing of property during marriage the spouses consult together ‘and the husband is censured if he presses his claims on the fruit of his wife’s labours too far’.² There are other societies where wives complain that their husbands seize the pro­ceeds of their labours; but any proposals for the introduction of legislative modifications of the customary law on the lines of the Married Women’s Property Act, 1882, must be based on careful local examination of the requirements of different societies. Yet the principle of equality certainly demands that wives be able to claim for themselves their own earnings at the very least; and this is already the position in many parts of West Africa and in North-Eastern Rhodesia and Nyasaland.

¹ Final Recommendations, II, 5, p. 530.

¹ Mair, op. cit., p. 96.

The position of widows in African customary law is one which may cause concern to those who would improve women’s status. Apart from the levirate custom which raises special questions, a widow may be left with the unhappy alternative of returning destitute to her own family and depending on them for support, or of remaining with her deceased husband’s family usually as the wife of one of his kinsmen. This is often the result of the exclusion of women from inheritance; but even the admission of women to equal rights of participation in, for example, family property in Yorubaland may not benefit widows as such—for they will not come of the right line of descent to inherit; women participate in Yoruba family property as children, not as wives.¹ A widow may of course be supported by her children but the lot of a childless widow may be hard indeed. It should be possible to devise legislation which would afford the widow genuine freedom of choice—perhaps through a special application to the local African court which could be given discretion to make appropriate orders in different cases. But in some cases, such as when the deceased leaves insuffident property to satisfy the reasonable requirements of his widow or widows and his children and kinsmen, the conflict of interests between wives claiming equal rights which result essentially from a new concept of marriage, and clansmen daiming traditional rights based on an older sodal pattern, will be crystallized and will demand solution.

Similar considerations apply to the question of affording wives equal rights with their husbands over their children. Rights to children, perhaps deriving in the past at least from the payment of marriage cattle for the mother (irrespective often of the actual progenitor of the child) repose, through the father, in a patrilineal dan in many sodeties. The child’s mother is not a member of this clan. It is easy to see that in this situation the struggle by women for equal rights will bring them into conflict not only with their husbands’ claims but with those of their clans; and it is difficult to see how ultimately the daims of the clan can be recondled with the rights of the wife based on the notion of the smaller, nuclear family.

The final complication with regard to customary marriage to which reference can now be made results from the problem of conflicting laws which is typical of the multiple legal systems of modem Africa. How far is a customary law marriage recognized by the ‘general’ (i.e. statute and common) law? Is the wife of such a marriage entitled to the status of wife to the same extent as the wife of a monogamous marriage in

* G. B. A. Coker, Family Property among the Yoruhas, 1958, pp. 159 if.

statutory form? Once again diversity is found in the law. Most of the consequences of a customary law marriage will, of course, be governed by that system of law under which it is contracted and under which the spouses live. On this basis, in most territories the wife will be recognized as a wife, though as subject to different legal consequences in respect of the marriage itself from the wife of a marriage in statutory form. In South Africa, however, even the term ‘marriage’ is denied to the ‘customary union’ and the existence of the latter is no bar (as it is in many other parts of Africa) to a subsequent statutory marriage by either spouse, which automatically dissolves the customary union. As a result of recent decisions of the Judicial Committee, the recognition of customary law marriage has been extended much further in other parts of Africa, in allowing children and wives of customary law marriages to share in the distribution of a deceased husband’s estate as children and wives within the meaning of those terms in English statutes concerning succession, as applied in Africa.¹ Similar develop­ments have been authoritatively proposed for South Africa, i.e. that the law should be reformed to allow all legitimate children to share equally in their father’s (or mother’s) estate, whether the issue of a marriage or a customary union.² The widow should also receive at least a child’s share (under ‘native’ law a woman has no right of inheritance at all)?

LAW REFORM IN UGANDA

Women of Uganda are considerably dissatisfied with the laws of marriage in that country. A women teacher has written:

‘The laws and customs which govern marriage, inheritance and the custody of children are in a hopeless state of the utmost confusion and complication. It will need long, patient and careful study of the Protectorate Laws and African customary laws to bring about the much needed reform in integrating the two systems.’¹

* Bamgbose v Daniel[i955] A.C. 107 (P.C.); Many! v The Queen [1957] A.C. 126 (P.C.); Coleman v Shang [1961] A.C. 481 (P.C.).

² Julius Lewin et al., ‘The Legal Status of African Women’, Race Relations Journal (South African Institute of Race Relations, Johannesburg), Vol. XXVI, No. 4, pp. 152-9, at p. 153.

* Lewin, op. cit., p. 153; Seymour, op. cit., p. 175: in some tribes of the Sotho-Tswana group a woman may inherit property.

⁴ E. S. Nyendwoha, ‘Uganda’, in Women’s Role in the Development of Tropical and Sub-Tropical Countries, 1959 (International Institute of Differing Civilizations, Report of the XXXIst Meeting), pp. 174-85 at p. 176.

For his Presidential Address to the Uganda Society in 1959, Dr. H. F. Morris, then Native Courts Adviser, chose as his subject ‘marriage in Uganda, and in particular the anomalies and difficulties to which the present legal position gives rise’.¹ The present writer was privileged in i960 to attend in Uganda two sets of discussions upon this urgent theme—a national conference called by the Uganda Council of Women and a special committee appointed by the Upper Nile Diocese of the Native Anglican Church to recommend possible lines of reform.

A major source of discontent arises from uncertainty in the present law; and this in turn is due to the inextricable confusion of different systems of law. In common with most African territories, Uganda has a complex legal system based upon the coexistence of the ‘general’ or ‘Protectorate’ law (composed mainly of the law of England of 1902 with statutes subsequently enacted in Uganda) with various local systems of customary law, of which Uganda has a wide variety. (Some rules of Islamic and Hindu law are also applied in the field of marriage under special local Ordinances.) The divisions of the judicial system —the High Court and magistrates’ courts on the one side and the Buganda or African or native courts on the other—do not correspond precisely with the divisions of law but do so very nearly: the High Court administers principally the general law; the African courts apply mainly the unwritten customary law prevailing in the areas of their jurisdiction, with some sections of the enacted laws and local bye-laws, and they must now be guided by certain general enact­ments, especially in criminal law or procedure.

Various types of marriage are available in Uganda. Customary law marriages may be entered into by Africans. The Marriage Ordin­ance³ and the Marriage of Africans Ordinance³ both came into force in 1904. The former governs the formation of monogamous type marriage, in civil or religious form, by any persons. The Registrar must be satisfied that neither party is already married by customary law to another spouse. The Ordinance also provides for the conversion of customary law marriages into legally binding monogamous marriages by a civil ceremony. During the continuance of an ‘Ordin­ance marriage’ neither spouse can contract a valid customary law marriage: to do so (that is, to purport to do so, the second marriage being void), or to enter into an Ordinance ‘marriage’ while married by customary law, is an offence akin to bigamy punishable with up to

¹ H. F. Morris, ‘Marriage and Divorce in Uganda', Uganda Journal, Vol. 24, i960, pp. 197—206.

¹ Chapter 109 of the Revised Laws, 1951. ’ Chapter 111.

five years’ imprisonment. The Marriage of Africans Ordinance provide for marriages between African Christians or Muslims respectively, and the Marriage and Divorce of Mohammedans Ordinance of 1906* dispensing with certain preliminaries required by the main Ordinance.

The Divorce Ordinance, 1904,² which governs the dissolution (in the case of Africans by the High Court or a First Class Magistrate’s court) of a marriage under the Marriage Ordinance, is based on the English law of that date, which was then found in the original Matri­monial Causes Act, 1857. This law discriminated in favour of men, who could petition for divorce on the ground of their wives’ adultery only, whereas a wife’s petition had to be based—and still does, in Uganda —on the husband’s adultery plus one of the aggravating circumstances: desertion, cruelty, bigamy, incest, etc. Dr. Morris describes this Ordinance as having ‘almost a medieval ring about it’; it is an archaism which should no longer be tolerated on the statute book of Uganda.

Confusion arises because some Africans in Uganda, while attaining the social ideal of a church wedding under the Ordinance, also perform all the requirements of customary marriage; they therefore contract a curious kind of double marriage, the two aspects of which have inconsistent consequences? It would require specialized legal advice clearly to apprise the spouses in this situation of their legal rights and duties, especially as clear judicial authority is lacking. One case of note in fact serves only to confuse the position still further. In Bishan Singh v R.,⁴ the High Court held that the Marriage Ordinances were imperative as to native Christians, so that a marriage between such persons celebrated according to customary law was a nullity and the accused Sikh therefore committed no offence in taking away the ‘wife’ of such ‘marriage’. This decision would not seem to have been required by the terms of the Ordinances, which appear essentially permissive, not mandatory.

African courts have no jurisdiction over marriages contracted under the Ordinances—except that they can hear claims for refund of bride­price or for adultery, founded on native law or custom? When this

¹ Chapter no. ² Chapter 112.

² J. V. Taylor, The Growth of the Church in BUganda, 1958, p. 176.

¹ Criminal Appeal No. 13 of 1923, reported in the Uganda Herald on January 26,1924. The decision gave rise to considerable anxiety, not least among officers of the government.

⁵ Native Courts Ordinance, Chapter 76, section 10 (4); African Courts Ordinance, 1957, section 8 (i). However, the Buganda Courts Ordinance,

exception was provided for (in the face of considerable opposition from missionaries) its implications were perhaps not fully recognised. For the refund of the bride-price is normally die means of dissolution of the customary marriage. Thus the situation arises in which,following a ‘double marriage’ between two partners, the customary marriage may be dissolved by the refund of die bride-price in the native courts and the spouses may not appreciate that they are still bound by the Ordinance marriage, which is dissoluble only in a higher court. If either spouse marries another person, he or she will become liable to the penalty for an offence akin to bigamy described above. Dr. Morris gives ‘the tortuous but not impossible example of the man—let us call him James—who was married in church accompanied by a native marriage contract, to Anne. The pair separate and the customary contract is dissolved by a Native Court, the bride wealth being returned. Anne is then married by native custom to William. James, however, later visits and sleeps with her and is discovered by William, who takes a case against him in the Native Court for adultery which of course has been committed with a woman who is still in Protectorate Law the adulterer’s wife. What is the Native Court to which this case is brought to do?’¹

This is one of the possible situations which, it has already been suggested, is too fantastic for the plot of a comic opera. And yet Uganda presents only a slightly more extreme example of the problem of conflicting laws than that which is found in many parts of common law Africa, where a similar framework of marriage law is provided. It was this sort of situation that the Ghana Government made pro­posals to reform in their White Paper on Marriage, Divorce and Inheritance in 1961.² The suggestion that all sanctions maintaining monogamy be removed could hardly be expected to be acceptable to Christian opinion, which would insist that some form of monogamous marriage should be available in the state.³ The proposals for divorce were more interesting, apparently representing a genuine attempt to reconcile modem needs (judicial procedure and sanction) with tradi­tional customary law (attempts made privately to reconcile the Chapter 77, section 9 (S), excludes jurisdiction over ‘Ordinance marriage* with no exceptions.

¹ Op. at. For problems arising from the application of Islamic law, see Ander­son, Islamic Law in Africa, 1954, pp. 148 If.

¹ No. 3 of 1961.

³ It is interesting to note that the President of another West African state, Guinea, with which indeed Ghana has a union, is reported as stressing that polygamy must disappear in order that his country may develop.

spouses, with divorce as the solution only if it becomes clear that the marriage has irretrievably broken down—thus departing from the English law notion of the matrimonial offence as a basis for divorce).

CONCLUSION

In this discussion it has been possible only to consider a few of the fields within which reform of the law might be expected to be of relevance in improving the status of women in the developing countries of Africa. It has been seen that many of the problems turn on the position of women in marriage, and in particular on the incidents of customary law marriage and on the complex situations which result from the internal conflicts of laws on this subject.

Even in England law reform to give women equality with men in private law is still needed in certain matters.¹ But the difficulties of the task in Africa are intensified by the speed and extent of the social changes now taking place. African women are impatient to assert and enjoy in all respects their equality with men and such is the tempo of the times that they may well accomplish in a decade advances which took their sisters in other continents a generation. Is it too much to hope that the laws of their countries will advance with them?

* These matters were considered by die Law Reform Committee in its Ninth Report, Liability in Tort between Husband and Wife, 1961, Cmd. 1268.