“Taking away women’s right to consent can be a form of affirmative action”
In Uganda, sexism thrives in seemingly mundane and blatantly malignant forms. From the everyday policing of women’s bodies, the exclusion of pregnant women from institutions of learning, to rape of girls and young women that is so high that a minister once said that such heterosexual rape is normal. To be a Ugandan woman is to be acutely aware that your rights and dignity are subject to dangerous notions and twisted definitions of culture, religion and morality. It is to be subjected to religious dogma under which you exist as a subservient human in a country whose constitution states is secular and must remain secular.
But perhaps the most regressive application of religion and culture and its place in women’s lives in the last decade came last week. With a few days to women’s day, a Constitutional Court decision upheld church rules that require that brides (and not grooms) seek the consent and blessing of their parents before getting married.
The petition challenging unconstitutional church marriage requirements, including those on compulsory HIV testing for couples, was filed by lawyer Michael Aboneka against Watoto, one of the oldest and most powerful Pentecostal churches in the country. In upholding the rule on parental consent for women, Justice Christopher Gashirabake held that the requirement for women to present a letter of consent from their parents to the church before a wedding does not contravene the right of everyone who is above 18 to freely marry and found a family. All the other four judges agreed entirely with his decision. Justice Gashirabake celebrated the church for intervening and regulating women’s power to consent, stating that:
“In the wisdom of Watoto Church administration, they found it comfortable to establish the willingness of the woman through her parents.”
Blind to this reinforcement of paternalism and the idea that women, like children, cannot be left to consent on their own, the judge stated that the idea that the women’s willingness to marry should be established through another party is part of freedom of religion. Emphasizing that Watoto is a religious institution with “some degree of autonomy”, the judge went ahead to refer to this infantalization of women as a form of affirmative action, reasoning that:
“It is undisputed that the requirement of ‘a clearing letter’ only applies to the bride and not groom. However, this differential treatment of women can be explained away by the unique status of the women that requires protection from abuse.”
The judgment sounded like every single time a woman has been told that she cannot have the same entitlement as men because it is for her own good and protection. My mom was given the same argument fifty years ago when her teachers told her to study home economics instead of technical drawing which she was passionate about and good at. My friend was served from the same dish when her husband asked her not to go to work anymore because men might admire and sexually abuse her. Staying at home was for her protection. Women hear these protection arguments when they are given a string of rules not to walk at night, stay in groups and wear modest clothing to avoid rape. Men are not subjected to the same rules. Neither are they told that they must not rape women. The existence of violence is used to further violate women’s autonomy and freedoms, and reinforce discrimination.
In the case of Watoto, the judge pointed out that “it is undisputed that in this country women are considered to be among the marginalised groups” and that “different traditions in this nation forced girls into marriage” and then considered that the solution for such malaises was not to uphold women’s right to consent to marriage. The judges rather chose to peg a woman’s consent to family consent or non-consent – effectively taking away a woman’s power and handing it to the same families that have historically been at the centre of abusing women’s rights, including forcefully marrying them off or refusing them from marrying partners of their choice.
To see an entire Constitutional Court comfortably deep into harmful cultures that limit rather than empower women to justify their decision is heartbreaking. It tells women that they are on their own – left to fangs and whims of religion. The decision is a confirmation that while every now and then courts may make progressive decisions on women’s rights, including a recent declaration by the same court that laws that recognise marriage of women who are below 18 are in violation of the Constitution and undermine women’s right to consent (as such consent for a girl below 18 would depend on parents), the judiciary is not immune to harmful culture. And in the face of difficult cultural questions that threaten powerful institutions, the court is not afraid to contradict its previous decisions and sacrifice human rights gains over the years at the altar of morality.
The regressive judgement extended to the issue of consent when it came to HIV testing. Upholding Watoto’s requirement for compulsory HIV tests to be done for couples, the judges agreed with Watoto that requiring a couple to submit HIV test results before getting married “enabled” them to make informed consent. Here again, the decision assumes that there are situations when adults of sound mind may need help to make decisions on their marriage.
Justice Gashirabake reasons that HIV is a dangerous infectious disease and rules such as those of Watoto are justifiable. This decision threatens historical gains that saw Uganda lauded for handling HIV by empowering patients and entrusting them to protect their loved ones rather than coercing, labelling and stigmatizing them. The decision also did not satisfactorily address the very important question of the ways in which a church requesting to know the HIV status of two adults who have agreed to get married reinforces stigma against people who have HIV and may wish to keep their status to themselves without being denied basic rights such as marriage.
Despite progress on HIV prevention and treatment, HIV is still endemic in Uganda. The very week of this decision, nearly 210 adolescent girls and young women were newly infected with HIV. By the end of 2020, three-quarters (79%) of new HIV infections among 15-24yr olds were females and two-thirds of new HIV infections (69%) in the age group 20-24 were also in females according to UNAIDS.
Requiring disclosure of HIV status before marriage to a church, violates the rights to privacy of people and upholds the fear and stigma-based approaches that we survived in the 90s. AIDS-related illnesses are still among the leading cause of death but being HIV positive cannot in 2023 be treated like a death sentence and stigma upheld by court.
The Constitutional Court’s final advice is that people can opt not to be part of religions whose cultures they do not agree with. The decision fails to hold the state accountable for ensuring human rights are upheld regardless of belief. It sets women back decades and creates a dangerous precedent where women and other marginalized groups risk being blamed for violations against them because: Why can’t they just walk away?
The Constitutional Court has made it legally justifiable to absolve violators of accountability and places the burden on victims to keep moving until they find a space where their rights will not be violated. This is the latest regressive and regrettable move at a time when women’s rights face renewed threats in Uganda and beyond.
Patience Akumu is a lawyer and writer living in Uganda.