ANALYSIS OF CASE OF INNOCENT NGOBI NDIIKO AND OTHERS V THE ATTORNEY GENERAL AND ANOTHER CONSTITUTIONAL PETITION NO 23 OF 2020

Blair Bikwasi*

1.0  INTRODUCTION

The law on Divorce in Uganda is regulated by the Divorce Act Cap 114. This Act has severally been subject to constitutional interpretation with the most notable being the case of Uganda Association of Women Lawyers v AG. Under Section 4, the Act requires any party seeking to dissolve a marriage to prove at least one of the seven grounds stated there under. This (among other sections) is what the Petitioners in this case sought to challenge, that once spouses agree, they should be allowed to dissolve their marriage without need to prove fault on either party.

This article therefore summarizes the main contentions in the case indicating arguments of both parties, the decision of court including the dissent ruling and concludes with a critical analysis of its implications.

2.0  CASE BRIEF

2.1  THE CONSTITUTIONAL COURT

This decision was handed down by a Five - judge bench of the Constitutional Court composed of Justice Hellen Obura, Justice Fredrick Engonda Ntende, Justice Eva Luswata, Justice Moses Kazibwe Kawumi and Justice Asa Mugenyi.

2.1.1        NATURE OF THE CASE

This case was constitutional petition, brought under Article 137 of the 1995 constitution as well as the Constitutional Court (Petition) Rules.[1]

Petitioners’ case

The petitions sought 6 declarations but summarily, they challenged sections of the Divorce Act which require proof of fault in order to dissolve a marriage, they also challenged sections 15, 16 and 18 as being discriminatory against men at dissolution of marriage and therefore unconstitutional.

Respondents’ case

The first Respondent raised a preliminary objection that the petition did not any issue for constitutional interpretation and generally asserted that the impugned sections are not unconstitutional.

Interestingly, the second Respondent a Civil Society Organization, New Hope Uganda was not a party to the original petition but applied successfully to be admitted as an interested party. In response counsel for the second Respondent argued that the Petitioners sought to over haul the law governing family relations and introduce a no-fault divorce regime.  He continued that the petition sought to liberalize divorce and make marriage an ad hoc arrangement where parties can casually walk in and out.  He prayed that the petition be dismissed.

Issues for determination

1.      Whether the petition raises any question for constitutional interpretation.

2.      Whether sections 4,5,6,7,8, 15, 16,18, 30,33 and 38 of the Divorce Act[2] are in contravention of the constitution of the republic of Uganda.

3.      Whether the Petitioners are entitled to the remedies sought.

2.2  ANALYSIS AND DECISION OF COURT

2.2.1        MAJORITY DECISION

As to issue 1, by Unanimous decision, court agreed with the Petitioners that the petition raised a question for constitutional interpretation hence the issue was answered in the affirmative.

On the second issue, Justice Hellen Obura with whom 3 other justices agreed started off by noting article 126 (1) of the 1995 Constitution which is to the effect that judicial power is popularly derived. She then posed a rhetoric question as to, what are the values, norms and aspirations of the people of Uganda in regard family, marriage and children?

She looked beyond the letter of the provision on consent by tracing the background to Article 31 of the constitution. After a thorough examination of the Hansard of the Constituent Assembly, she concluded that that the mischief which the framers of Article 31 sought to treat was the historical injustice where men and boys would enter into marriage with their free consent while women and girls were denied that opportunity because the decision was made by their fathers on their behalf.

In her considered opinion, the consent in Article 31 had nothing to with divorce, that would be a contradiction to Objective 19[3] in the same constitution.  She therefore concluded that any change in the law of divorce should be through a clear legislative process with the participation of the citizens.

Justice Asa Mugenyi who agreed with justice Hellen Obura opined that there are ethical questions that must be considered in determining the petition. For example, how to balance individual freedom and societal stability in respect to divorce? he went on to say that unlike an ordinary contract a marriage has formalities to its entry the terms of the relationship and dissolution are fixed by law and not by the parties. He interestingly advised parties who are not ready to commit to marriage and its principles to instead opt for cohabitation but warned of its legal consequences.

Justice Kazibwe too agreed with the majority decision but added that Article 31(3) must be interpreted in the context of the national objectives and therefore the impugned sections are not unconstitutional.

On sections 15, 16 and 18, court unanimously agreed that these sections were unconstitutional as they give preferential treatment to women as opposed to men at divorce. However, court was hesitant to annul them because that would create a lacuna in the law as the provision is very important at the dissolution of the marriage. Such provisions have to be interpreted in accordance with article 274.

2.2.2        DISSENT JUDGEMENT

Justice Engonda Ntende observed that free consent is the bed rock upon which marriage is built.  He observed that without free consent a marriage is void. However, he went on to ask whether the consent in article 31 is just a one off at the commencement of the marriage or is a subsisting element of the marriage. In his considered opinion, he concluded that consent is a subsisting element and sustains its existence, therefore once it is withdrawn then the marriage ends.

Court therefore by majority of four to one, that sections 4,5,6,7,8,29,32 and 37 are not inconsistent with and in contravention of articles 20, 21, 32 24, 27, 29(1e) 31(3) 44a

That sections 15, 16 and 18 are inconsistent with Articles 21 and 31 but should be construed with such modifications to bring it in conformity with the constitution.

As to remedies Court concluded that each party bears its own costs.

3.0  IMPLICATIONS OF THE CONSTITUTIONAL COURT DECISION

The decision was received with mixed reactions; the liberal and progressive litigants received the decision with cold hands describing it as unfortunate to the constitutional governance. Notably, Dr. Busingye Kabumba noted; “the decision is as interesting (and voluminous) as it is unfortunate.”[4] In the next part, the article examines what the implications of this court ruling are and where it leaves family law in Uganda.

Firstly, the court upheld the freedom from discrimination as enshrined in the 1995 constitution.[5] Building on the gains from past decisions specifically the case of Uganda Association of Women Lawyers V Attorney general.[6] It ought to be remembered that court in FIDA court found the requirement for women to prove at least two grounds while men are only required to prove only one ground to be unconstitutional as it promotes gender-based discrimination. In the instant case, court unanimously agreed that sections 15, 16 and 18 which only cater for property and protection of women at separation are unconstitutional as they are discriminatory on the ground of gender.

However, Justice Hellen Obura with whom the other three justices agreed found that to annul the sections would create a lacuna in the law. Therefore, she held that the sections were to be interpreted with such modifications in order to bring them in conformity with the constitution. Simply put, the sections are available to both men and women.

Additionally, the ruling emphasized the justiciability of the National Objectives and Directive Principles of state policy. Initially, the national objectives were looked at as a separate part of the broader constitution. In his book Reviewing Chapter Four, Prof. Joe Oloka Onyango reflects gray area that forms part of the constitution part of the constitution.[7] 

While the petition was not directly based on the national objectives, it is evident that they heavily influenced the majority decision. Court firstly observed that that Article 8A provides that Uganda is to be governed according to national interest and common good enshrined in the national objectives and directive principles of state policy.[8]  Justice Moses Kazibwe stated express that Article 31(3) on which the Petitioners based their arguments on consent, must be interpreted in the context of the national interest. This decision also builds on the gains in Tinyefuza v AG[9], where court earlier observed that the national objectives are part of the constitution and should be and should be taken into account when interpreting the constitution.

The constitutional court also took into consideration the norms and values of the people of Uganda.  It is worth noting that Article 126(1) emphasizes that judicial power is popularly derived and must be exercised in the name of the people. Therefore, the power must be exercised in the name and on behalf of the people of Uganda. Justice Hellen Obura, in her lead judgment asked rhetorically, what are the norms and values of the people of Uganda in regards to marriage, family and children?

Unlike the past constitutions, the 1995 is widely regarded as the most comprehensive in the nation’s history. This is mainly because it was a result of wide consultations and the resolutions which were put forward by the Odoki committee were views directly from Ugandans. The 1995 constitution, is to the effect that the family is the natural basic unit of society and is entitled to protection by the state. Surely, one of the state institutions that must guarantee this protection is the judiciary.

While Dr. Kabumba in his article argues that the best way to protect the family is not by forcing people who clearly no longer want to stay together to do so because they cannot find fault, he also does not say and rightfully so that the best way to strengthen it is by weakening all the principles on which it is entered and exited.[10] The argument of the Petitioners on no fault divorce does not ogre well with the aspirations of Ugandans as stated in the 1995 constitution. As Justice Hellen Obura concluded, the impugned sections subscribe to the norm’s values and aspirations of the people of Uganda and therefore remain good law until the people of Uganda decide otherwise.

The court also clarified the issue of Consent in Marriage under the 1995 constitution. Simply put, the Petitioner’s argument was that according to article 31(3) consent is at the bedrock of marriage and therefore once it is withdrawn then the marriage should cease to exist. In response, the second Respondent argued that the Petitioners sought to establish a no-fault divorce regime in Uganda. This brought into contest the consent required under article 31(3) of the constitution.

In his dissent Judgement, Justice Engonda Ntende raised an important question as to whether the consent is a one off that is only needed at the commencement of marriage or whether it subsists the marriage? In his opinion he concluded that consent is intertwined with the marriage and once it is withdrawn, the marriage ends.

Textually, this reasoning is correct, but a better conclusion could be looking at both the textual and contextual interpretation of Article 31. This seems to be the approach taken by Justice Obura in the majority judgement. She started with a review of the Constituent Assembly proceedings and concluded that the reason why consent was included was to cure the mischief where men, would marry with free consent while girls were not allowed to consent as the decision was taken by their fathers. She stated:

“I believe that even in their wildest imaginations the delegates of the constituent assembly who introduced the concept of free consent could never have anticipated the withdrawal of consent by either party. That would be a sharp contradiction to objective 19 of the same constitution”.

Justice Asa Mugenyi on the same issue of consent distinguished marriage from other contractual transactions where consent can be withdrawn at any time. “In marriage the consequences of divorce have far reaching impact not just on the parties but also on the society at large.” Therefore, court made it clear, that while the Divorce Act is an old and outdated law, its provisions on the need to prove grounds at divorce are not inconsistent with the spirit and letter of the constitution.

Finally, the constitutional court also rejected the Petitioner’s contention that sections of the Divorce Act providing for divorce proceedings are unconstitutional as they subject parties to mental and emotional torture and inhumane treatment. Justice Engonda-Ntende observed that divorce proceedings just like any other court proceedings are capable of eliciting painful and uncomfortable testimony from parties. Therefore, a divorce hearing does not hold the purpose to constitute torture under the Prevention and prohibition of torture act.

Justice Mugenyi equally was not persuaded by the Petitioners’ assertions; he noted that even in other disputes (apart from Divorce) there are no people who enjoy coming to court. The implication of this is that court acknowledged the pain that comes along with a divorce proceeding however, this pain is not aimed at torturing the parties but rather to assist court to come to a fair and just conclusion.

It must be noted that freedom from torture is a non-derogable right, therefore ordinarily if court found that freedom from torture is violated then the process would be declared unconstitutional. However, court opted to balance between the demands of justice and infringement on a non-derogable right and concluded that divorce proceedings under the Act are constitutional.

4.0  CONCLUSION

In conclusion, the first recorded challenge to fault-based divorce in Uganda was in the case of Mbabazi V Baziira[11], where the Court of Appel was of the view that the argument against the constitutionality of fault-based divorce was a valid one necessitating an interpretation by the Constitutional Court. Sadly, no constitutional reference ever resulted from those proceedings.

Therefore, this case was the first opportunity in which the constitutionality of Uganda’s Fault based divorce regime was put to test. While the case set the record straight that for marriage to be terminated, fault must be proven by one spouse against the other, it sparks a very important debate about how far popular opinion can be stretched amidst the struggle for realization and protection of human rights.

What happens when the popular opinion is averse to the interests of marginalized groups in our society and at what point does court step in to suppress this adversity? These questions could best be answered if the Petitioners opt to exercise their right of appeal.

BIBLIOGRAPHY

Constitution

The 1995 Constitution of the Republic of Uganda.

Statutes

The Divorce Act Cap 144.

Cases.

Mbabazi V Baziira Civil Appeal no. 44 of 2004.

Tinyefuza v AG Constitutional Petition no.1 of 1996.

Uganda Women Lawyers Association v AG Constitutional Petition No.2 of 2003.

Articles and Scholarly Writings

Dr. Busingye Kabumba, Expunging the ghost of Innocent Ngobi Ndiko: Appraising the Constitutional Court’s Decision on no fault divorce in Uganda, The Observer August 20, 2025. Available at <https://observer.ug/viewpoint/expunging-the-ghost-of-innocent-ngobi-ndiko-appraising-the-constitutional-courts-decision-on-no-fault-divorce-in-uganda/> Accessed on August 21, 2025

Dr. Busingye Kabumba, The right to “Unlove”, The Constitutional case for no fault divorce in Uganda

Prof. Joe Oloka Onyango, Reviewing Chapter 4 of the 1995 Constitution.

The pdf version of the article can be downloaded here:

ANALYSIS OF CASE OF INNOCENT NGOBI NDIIKO AND OTHERS V THE ATTORNEY GENERAL AND ANOTHER CO.

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 *  Head of the Public Law & Constitutional Affairs Division of the Legal & Governance Cluster, Lawpointuganda.

LIST OF REFERENCES

[1] Statutory Instrument 91 of 2005.

[2] Cap 144.

[3] National Objectives and Directive Principles of State Policy.

[4] Dr. Busingye Kabumba Expunging the ghost of Innocent Ngobi Ndiko: Appraising the Constitutional Court’s Decision on no fault divorce in Uganda, The Observer August 20, 2025.

[5] Article 21 of the 1995 Constitution.

[6] Constitutional Petition No.2 of 2003

[7] Prof. Joe Oloka Onyango, Reviewing Chapter 4 of the 1995 constitution, Page 56.

[8] Article 8A (1) of the 1995 Constitution.

[9] Constitutional Petition No. 1 of 1996.

[10] Dr. Busingye Kabumba, The right to “Unlove”, The Constitutional case for no fault divorce in Uganda.

[11] Civil Appeal 44 of 2004.