The Unequal Equality of Marriage: Analysing the Constitutional Court's Polygamy decision

By Umar Trife Wamboze*

In the past weeks, there has been a wave of public reactions to the Constitutional Court’s decision in Women’s Probono Initiative v Attorney General (the polygamy decision henceforth). The judgement, which upheld the legality of polygamy under customary and Islamic marriage laws, has once again renewed the debate on the law’s prescription of who to love, how to love, and, particularly this time, how many people one can love.

The petition by the Women’s Probono Initiative (WPI) sought to challenge the constitutionality of laws that accommodate and enable polygamous marriages on the grounds of sex-based discrimination and unequal treatment in marriage. The petitioners argued that by recognising and exempting polygamous men from the offence of bigamy and by maintaining laws that do not give women equal marital rights, the Ugandan state had failed in its constitutional obligation to protect women’s dignity, equality, and health.

The court, in its determination, found that polygamy, as practised under the Customary Marriage (Registration) Act and the Marriage and Divorce of Mohammedans Act, is protected by the constitution. The Court leaned on Articles 29, 31, and 37 of the Constitution, which guarantee religious freedom, the right to marry and found a family, and the right to practice one's culture, respectively. In doing so, it found no constitutional basis to strike down provisions that facilitate polygamous unions.

The Court further reasoned that women voluntarily enter into these marriages and, as such, cannot claim to suffer discrimination or inequality (para 59 of the judgement). This framing, however, elides the very conditions under which such “choices” are made and is, as this article will explain, more suggestive of the Court’s reluctance to interrogate the patriarchy than it is about its fidelity to constitutional text.

Discrimination and the question of choice

The court’s analysis of the issue of discrimination rests on the claim that polygamy and monogamy are not personal traits of any of those who contract them; therefore, Article 21—which prohibits discrimination based on personal characteristics—does not apply. According to the court, the discrimination alleged by WPI arises not from the personal attributes of the individuals involved but from the inherent differences in the legal conditions that govern the contracting, subsistence, and dissolution of polygamous and monogamous marriages. These differences, the Court reasons, are tied to the nature of the marital regimes themselves and the choices made by those who enter them, rather than to any protected characteristic of the individuals (paras 48-50 of the judgement).

To further explain its disinclination to the discrimination argument, the court invokes freedom of choice, explaining that marriage forms are outcomes of individuals exercising their constitutionally protected freedom to choose how to pursue their relationships (para 51). Although the acknowledgement of choice is legally sound and might even seem progressive, especially given the court’s 2024 ruling in Fox Odoi v Attorney General, the court does not address the context in which these choices are made.

In a society like ours, where gender norms are historically and structurally patriarchal, it is disingenuous to claim that all marriage choices are made freely. And the court is not oblivious to this. Justice Tibulya observes in her judgement that the decision to contract a marriage may also be a function of power dynamics (para 112 of the judgement). The court’s consideration of consent as a primary determinant, at that point, ignores the limits of that ‘consent’ in a society where many women are economically and socially disempowered.

To this extent, we could also make an enquiry into why the legal allowance to marry more than one spouse is available only to men. Unsurprisingly, the court already hinted at how it might respond in paragraphs 69 to 73 of the judgement.

In classic Pontius Pilate style, the court has stated that ‘the fact that African women in Uganda do not contract polyandry marriages is not a function of section 4 (2) of the Customary Marriage (Registration) Act. Rather, it is a function of the rites of the African communities (i.e., their tribal culture) from which they come.’ (para 72 p. 25 of the judgement). This effectively shifts the responsibility away from the legal framework and onto culture, presenting the gendered nature of polygamy as a neutral reflection of societal norms and not constitutional scrutiny. The irony, however, is that the cultural affiliations are legitimised by law.

This becomes more apparent when we consider the court’s reliance on the idea that polygamy is gender-neutral and thus constitutionally valid. The Court refers to the legal definition of polygamy as encompassing both polygyny and polyandry but then immediately dismisses the absence of polyandrous marriages as a cultural phenomenon beyond the remit of the state. It affirms that everyone has the right to love, but only as culture allows.

This line of reasoning closely mirrors the same court’s logic in Fox Odoi & Others v Attorney General, where it upheld the provisions of the Anti-Homosexuality Act by asserting that constitutional guarantees of dignity and freedom must be interpreted in light of Uganda’s cultural values (public homophobic sentiments). In the instant, it is patriarchy that is being discussed. In both instances, individual rights are subordinated to dominant cultural norms, and in both, it is marginalised groups—queer persons in one, women in the other—whose rights are given up in deference to tradition.

The court’s decision also overlooks the growing body of jurisprudence elsewhere, which has challenged polygamy on human rights grounds. For instance, the Constitutional Court of Benin, in Case DCC 02-144, struck down provisions allowing polygamy for men while requiring monogamy for women, deeming them a violation of equality. Similarly, the Committee on the Elimination of Discrimination against Women (CEDAW) has repeatedly identified polygamy as a harmful practice that infringes on women’s rights (General Recommendation 21, paras 14 and 21). In contrast, Uganda’s judiciary seems content to treat cultural norms as immutable, even when they conflict with constitutional guarantees of equality.

Finally, the polygamy decision should remind one of Tina Krissman’s monologue in response to Jay Simmon’s frustration with the unfairness of the law in what should be a model democracy. She says:

‘This is America. It expands and it contracts, advances and recedes, opens and closes. This is a country birthed in freedom and built on slavery. Separating families?  They separated Black families in America for 250 years. What makes this feel so bad now is that we expect more. And that’s a good thing. This pain is progress. But do not forget who we are and where we came from’ (For the People S2 E2).

Similarly, the preamble to Uganda’s Constitution calls upon us to recall our troubled history—a history marked by exclusion, inequality, and systemic injustice. The pain and disappointment expressed by WPI and individuals like Ms Dora Muhanuuzi in response to the polygamy decision should pass as a growing national consciousness that expects more from our judiciary. The expectation itself ought to be read as a sign of progress, given where we have come from as a nation.

Moving forward, there is a need for a shift in judicial attitude—one that resists the temptation to treat culture as a constitutional safe haven immune from scrutiny. Courts must begin to approach the intersection of culture and law not as a line to be carefully navigated but as a site of critical engagement. Cultural norms are not static, nor are they beyond the reach of constitutional values. When cultural practices produce or sustain structural inequalities, particularly along gendered lines, it is the role of the judiciary to interrogate rather than insulate them. This does not require a wholesale rejection of cultural identity; rather, it calls for a jurisprudence that recognises the Constitution as a living instrument—capable of affirming dignity and equality, even in the face of long-standing traditions. In doing so, courts can ensure that the invocation of culture does not become a convenient detour around the constitutional commitment to justice.

* The writer is a programs officer at Lex Amica.