POLYGAMY, LAW, AND THE MISREAD JUDGMENT: AN IN-DEPTH ANALYSIS OF WOMEN’S PROBONO INITIATIVE V ATTORNEY GENERAL

Obita Calvin Stewart
3 days ago
7 min read

Updated: 3 days ago

Calvin Stewart Obita*

1.0 Introduction: A Judgment Ignored, A Conversation Distorted

When the Constitutional Court of Uganda handed down its decision in Women’s Probono Initiative v Attorney General[1] on July 10, 2025, the public reaction was swift, visceral, and almost entirely uninformed. Social media erupted. Headlines screamed that the Court had “legalised polygamy.” Opinion pieces condemned the decision as an affront to women’s rights, and heated debates broke out across radio shows, X (formerly Twitter), and other platforms.

But as with many instances of legal controversy in Uganda, what passed for analysis was often shallow outrage and what passed for public discourse was frequently divorced from the actual reasoning of the Court.

The judgment spanning over 40 pages of detailed constitutional interpretation, historical context, and legal reasoning was barely read, let alone understood. And that is, unfortunately, a reflection of a broader malaise in Ugandan civic culture.

Many people were angry, but they did not read the case. As I have long held back from saying, but must now state clearly: Ugandans do not want to read, and because they do not do that, they leave others to do the fact-finding for them. And well, when it happens, that’s the propaganda they enjoy everywhere.

1.1 The Petition: Framing Polygamy contrary to the constitution

At the heart of the petition was a bold claim: that polygamy, as practiced and recognised in Uganda under customary and Islamic law, is unconstitutional.

The Women’s Probono Initiative (WPI), a legal advocacy group known for championing gender justice, argued that polygamous marriages violate several constitutional provisions. They claimed that such marriages discriminate against women (Article 21), subject them to degrading treatment and health risks (Articles 24 and 44), deny them equality in marriage (Article 31), and reflect the government’s failure to fulfill its duty to protect marginalized groups (Articles 32 and 33).

More specifically, WPI challenged the existing legal framework in which Section 142 of the Penal Code (formerly Section 153) criminalises bigamy only within the confines of monogamous civil marriages while permitting men to marry multiple wives under customary or Islamic regimes. To the petitioners, this created a structural inequality: women could not similarly marry multiple husbands, and thus the law reflected and reinforced patriarchal privilege.

1.2 The State's Position: Legal Pluralism and the Defense of Cultural Autonomy

The Attorney General, in response, defended the status quo by drawing from Uganda’s constitutional framework of legal pluralism. The Constitution does not envision a single, monolithic model of marriage. Rather, it explicitly recognises the diversity of Uganda’s marital traditions, including Christian, civil, Islamic, Hindu, and customary marriages. Each of these regimes reflects particular moral, cultural, or spiritual understandings of union and family.

Within this legal diversity, polygamy is not an anomaly; it is a historically embedded and legally acknowledged practice. The Attorney General argued that individuals who choose to marry under customary or Islamic law do so knowingly and voluntarily. Their choices are protected under Articles 29 (freedom of religion), 31 (right to marry), and 37 (right to culture). To declare polygamy unconstitutional, therefore, would be to obliterate cultural and religious identities and to criminalise the exercise of constitutionally protected freedoms.

2.0 The Court’s Reasoning: Equality Is Not Sameness

In its judgement, the Constitutional Court declined to outlaw polygamy. Justice Margaret Tibulya, writing for the majority, undertook a meticulous examination of constitutional equality. She emphasised that equality before the law does not mean that all people must be treated identically in every context.

Drawing from the influential Canadian case of Andrews v Law Society of British Columbia,[2] the Court stated that equality is not synonymous with uniformity. The legal frameworks governing civil and customary marriages are not interchangeable; they are distinct regimes grounded in different legal and social philosophies. To apply the same criminal sanctions to both would be to ignore these foundational differences.

Justice Tibulya also noted that women who choose to enter polygamous marriages are not presumed to be victims. Rather, they are legal subjects capable of consenting to marital arrangements within their cultural or religious tradition. Polygamy is optional, and women who consent are presumed to understand its implications (Article 31(3)).

The law does not prohibit polyandry either, it is simply not practiced. The absence of women marrying multiple husbands is a cultural reality, not a constitutional defect. The Constitution cannot force cultural outcomes; it can only guarantee freedom of choice and non-discrimination within those choices.

2.1 Health, Dignity, and the Question of Harm

WPI advanced another powerful argument: that polygamy harms women emotionally, psychologically, and physically. They cited data linking polygamous households to higher rates of HIV, domestic violence, and emotional distress. But the Court refused to accept that these outcomes are inherently caused by polygamy itself.

Rather, Justice Tibulya emphasised that such harms often arise from the abuse or mismanagement of marriage, regardless of its form. Monogamous marriages are not immune to violence or neglect, and the mere presence of multiple spouses does not automatically amount to cruelty or inhuman treatment.

Importantly, the Court underscored the centrality of consent. If a woman is forced into a polygamous union, that would indeed be unconstitutional. But where she enters willingly, aware of the implications, the state cannot presume harm.

The Constitution protects individual autonomy even in decisions that may appear controversial or unpopular. This point was among the most misunderstood in public discourse. The Court did not romanticise polygamy, it simply stated that voluntary participation in a recognised marital regime cannot be equated with torture or indignity.

2.2 On Property and Marital Rights: Consent and Consequences

WPI also raised concerns about property rights, arguing that women in polygamous marriages are often economically disadvantaged and denied equal access to marital property. The Court acknowledged these concerns as serious and valid but was unwilling to attribute these injustices to the institution of polygamy itself.

Inequality in property sharing, the Court noted, often stems from poor legal enforcement, patriarchal inheritance practices, and lack of legal literacy, not the fact that the marriage is polygamous.

When a woman consents to be part of a plural marriage, she is by definition entering a system in which resources are shared among co-wives. That reality may not be ideal, but it is not unconstitutional. The solution, according to the Court, lies in strengthening protections for women’s property rights within all marital regimes rather than banning an entire marital structure that has been part of Ugandan society for generations.

2.3 Affirmative Action and Cultural Sensitivity

Perhaps the most difficult issue the Court had to grapple with was whether the government had failed in its duty under Articles 32 and 33 to protect women and take affirmative action to combat structural gender inequality. WPI contended that the continued legal recognition of polygamy constituted such a failure. The Court disagreed.

Affirmative action, it held, must be interpreted within the broader context of constitutional rights. While the state has a duty to eliminate discrimination, it must also uphold the rights to religion, belief, and culture. Outlawing polygamy in the name of equality would risk violating those very freedoms.

In this sense, the Court was not avoiding the hard truths of patriarchy. Rather, it was acknowledging the complexity of reconciling multiple rights in a pluralistic constitutional democracy. In cases where rights collide such as the right to gender equality and the right to culture, the Court must weigh and balance, not obliterate one right in service of another.

2.4 The Semantic Turn: Defining the Terms

One of the more intellectually elegant moments in the judgment came when Justice Tibulya paused to define the very terms at the center of the controversy. She drew clear distinctions between polygamy (the umbrella term for multiple spouses), polygyny (one man with multiple wives), and polyandry (one woman with multiple husbands).

She noted that Uganda’s legal system does not prohibit polyandry under customary law, and any absence of such practices is attributable to social norms, not legal barriers. This definitional clarity is critical.

It deconstructs the myth that the law favours men by design and reminds us that cultural practice, not legal structure, is often the true obstacle to equality. The Constitution, in this view, provides the floor not the ceiling of justice. It cannot, and should not, legislate culture into uniformity.

3.0 The Broader Lesson: Reading Before Reacting

This judgment is not beyond critique. It leaves unresolved questions about structural inequality, about the economic burdens of shared marital households, and about the quiet coercion that may hide beneath claims of consent. However, those are questions of policy, education, and social reform, not solely constitutional law.

The judgement reminds us that the Court is not a battleground for moral wars. It is a forum for principled interpretation of the Constitution, guided by law and precedent. To critique this ruling meaningfully, one must first engage with it.

That, regrettably, did not happen for most people. Instead, the public conversation was dominated by headlines, snippets, and half-truths. And so we return to the painful observation that must be repeated: people were angry, and all, but they did not read the case. And in that failure to read, to pause, and to reflect, we allowed shallow outrage to replace serious conversation.

4.0 Conclusion: Law as a Mirror, Not a Weapon

Women’s Probono Initiative v Attorney General is a landmark ruling. Not because it introduced something new, but because it clarified and reaffirmed something long standing: that Uganda’s Constitution recognises legal pluralism, and that within this pluralism, the right to marry includes the right to choose among culturally sanctioned forms of union including polygamy.

The Court did not say polygamy is good. It said it is constitutional. That distinction is everything. If we want to end patriarchy, then we must fight it in our homes, our schools, and our political spaces not by asking courts to outlaw our cultures without due process or reason.

This ruling, in all its complexity, is a mirror. It reflects where our society is and challenges us to think about where it ought to be. But we cannot build that future on noise. We must start with reading and appreciating.

* Editor-in-Chief Lawpointuganda.

The pdf version of this article is available here;