KAMPALA – Two weeks ago, the Uganda Police came out openly to inform the general public that adultery was no longer a crime under the Penal Code Act and therefore an aggrieved party cannot report a case of adultery to police with a view of causing the arrest of the culprits.
The pronouncement stemmed from a 2007 Constitutional Court ruling that adultery was no longer a criminal offence in Uganda and scrapped the same from the Penal Code Act. It was a victory for the women fraternity and a win for the egocentric men; it was their time to go promiscuous without fear of being nabbed by their stocking nosy wives or the husbands to their accomplices.
A perusal of the ruling shows that the decision was made by the constitutional court in the spirit of equality and to bring the law in conformity with the principles of fairness and not as a way of condoning adultery and endorsing promiscuity in society.
They were simply condemning section 154 of the Penal Code Act for being discriminatory against women. Since judges don’t make laws directly; they were sending a message to Parliament to do the right thing. Parliament must therefore act with speed and make the necessary amendments in the provision to make it balanced and consistent for all persons irrespective of their gender.
The ruling means that religious leaders will be speaking a different language from the law books. We should not forget that most of our laws derived their origin in the Bible especially in the books of Exodus, Leviticus, Numbers, and Deuteronomy which among others includes the Ten Commandments.
Those books are often referred to in Scripture as the “Law of Moses”. For many Christians, it is better have no law at all than to have one that contradicts the Bible. This means that adultery will only be a crime under the bible and not in the laws of Uganda if the ruling is not successfully challenged.
The constitutional Court ruling was premised on a petition filed by Law and Advocacy for Women and there is no doubt it took many especially the religious leaders by surprise. They are left with no option but to condemn adultery as a punishment that will be mated on the wicked after this life on earth.
One of the grounds for declaring the provision unconstitutional was that it was discriminatory in nature as it prescribed that only married men could be aggrieved in case of adultery. As a remedy, an aggrieved husband would be compensated with one thousand plus two shillings only.
The aggrieved wife who caught her husband was left at the mercy of God while others consoled themselves by becoming adulterous, after all the amount payable under the law was very affordable.
Am quickly reminded of a biblical scripture where Jesus said; don’t misunderstand why I have come. I did not come to abolish the laws of Moses or the writings of the prophets. No, I came to accomplish their purpose.
I tell you the truth, until heaven and earth disappear, not even the smallest detail of God’s law will disappear until its purpose is achieved. The moral law (such as the Ten Commandments) is the direct command of God, and it requires strict obedience. No wonder the British whose laws are still in use in our country had already smuggled all the laws of Moses into their contemporary laws.
The law, like everything we do and like everything we say, is a heritage from the past. The courts only intervene for so many other reasons including to make the law fair to all. Sir Francis Bacon long ago said, “The law of England is not taken out of Amadis de Gaul, nor the Book of Palmerin, but out of the Scripture, out of the laws of the Romans and Grecians.” And again he said, “Our laws are as mixed as our language. So just as the English language sprung from Anglo-Saxon, Teutonic, French, Latin and Greek roots, the English common law with its unsurpassed powers of assimilation, elimination and expansion, has its origins in old local customs, the civil law, the canon law of the Church, the writings of philosophers and texts of Scripture, interwoven with the accumulation of a thousand years of statutes and judicial decisions.
While reacting to the constitutional court decision, a pastor who presided over a friend’s wedding ceremony last week had this to say. “The world is free to change as much as it wants but the laws of Moses are here to stay and cannot be erased by man even if he was a judge. I implore you to stay out of the bodily sin of adultery; it is the most comfortable root to hell. The Ten Commandments are like some weeds that wither during the dry season but their seeds remain alive in the soils waiting for the arrival of the rains. Now every man is presumed to know the law and even when it is repealed by courts not by their wish, the law must be kept on the heart and upheld”
When the constitutional court delivered its ruling, a friend called me to offer my thought. During the conversation, this friend asked whether or not the Judges were not ordering Parliament to make adjustments in Section 154 of the Penal Code Act and my answer was yes, true judges make laws without saying a word because they must be seen to respect the other arms of Government. In speaking of whether Judge-make law, he called it “dog law. When your dog does anything you want to stop him from doing, you wait until he does it, and then punish him for it. This is exactly the way you make laws for your dog; and this is the way the judges exert influence on Parliament to make changes or to enact laws.
Indeed to say that the Bible in many ways has exerted a mighty influence on our law is a platitude so profound that I can scarcely hope to be excused for having uttered it. This influence has been manifested in several very distinct ways and still affects us to date. Law makers ensure that the laws they make are in harmony with the religious books and that is why it has been difficult for formulate laws to protect acts such as homosexuality, both Christians and Muslims view the behavior as evil and so long as they are consulted before the laws are made, some laws will never see light of day. That is the power of religious groups.
It has been often said, indeed, that Christianity is part of the common law of England, and this is due in great measure to the authority of Sir Matthew Hale), Blackstone and other writers, while Lord Mansfield held (Chamberlain of London v. Evans, 1767) that the essential principles of revealed religion are part of the common law. The former proposition has some support also in the decisions of our own State, but in its broad and general sense is without adequate foundation, as has been frequently demonstrated. There can be, however, no doubt that the principles of the Christian religion have profoundly affected the law.
Second, there is the special influence of the Church and the law of the Church upon the common law. We, who live in modem tithes when the State is the supreme and only source of law, and the Church is absolutely deprived of temporal authority, find it hard to realize that for many centuries the Church exercised an authority quite as important as that of the State. When faced with the current predicament, religious groups will send emissaries to Parliament to ensure that the law on adultery is restored.
The law of the sate works hand in hand with the universally accepted religious laws. To repeal the law on adultery would mean some sections of the bible must also be amended soon.
The public announcement by the Police arose out of a public outcry arising out of an incident in which a TV personality was recorded on camera after being caught red handed having an affair with a married woman. The aggrieved partner made a complaint at Police who as usual swung in action out of their usual sheer ignorance that the law had been repealed. In a twist of events, the police officers involved in the case were arrested for discreditable conduct and embarrassing the force. It appears the police officers were not aware of the decision of court.
The decision of the constitutional court means that Police are not supposed to interfere with adulterous cases save for complaints such as elopement, domestic violence and or in cases of both physically or emotionally torture of offending married partner.
In effect, the decision now leaves an aggrieved party with only one option, use the evidence gathered as a basis for civil processes like divorce, separation, custody of children, their maintenance and sharing of property if any. The police has been left with only one role to play in cases involving adultery, to ensure that the misunderstanding involving adultery don’t escalate into a breach of peace.
Mr. Roger Wadada Musaalo, a Lawyer, human rights activist, researcher, and politician