Skip to main content
SpringerLink
Log in

Combating Marital Rape: The Law and the Criminal Justice System in Uganda

  • Chapter
  • First Online:
Violence Against Women and Criminal Justice in Africa: Volume II

Part of the book series: Sustainable Development Goals Series ((SDGS))

Abstract

The question of marital rape continues to be a controversial subject in Uganda. It is perpetuated by the patriarchal notions, cultural and religious dictates that portray ‘a good wife’ as one who submits to her husband’s needs and never protests his demands in any way. The Ugandan government has undertaken commendable strides in not only ratifying various global, regional and sub-regional treaties that guarantee the rights of women against discrimination and violence, but also in enacting progressive domestic laws that seek to protect spouses even in the domestic sphere. In spite of this, violations of women’s rights in many forms, including marital rape, persist. The strong advocacy from mainly the women’s movement for the proposed inclusion of the offence of marital rape in Uganda’s legislation has since fallen on deaf ears. This is partly attributed to the African values where wives are considered property and that husbands are entitled to sex at any time. To date, there is no specific statutory law or even provision within the Penal Code Act cap 120 (amended) that criminalises marital rape in Uganda, yet the vice persists unabated. This chapter seeks to analyse the existing jurisprudence on marital rape in Uganda and advocate for the enactment of the law against marital rape to be expressly included in the Penal laws of the country.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution
Chapter
USD 29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD 109.00
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Softcover Book
USD 139.99
Price excludes VAT (USA)
  • Compact, lightweight edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info
Hardcover Book
USD 139.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

  1. 1.

    UN WOMEN, ‘Facts and Figures: Ending Violence Against Women’, https://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures.

  2. 2.

    Erika W Smith, ‘5 Statistics That’ll Change How You Think About Marital Rape’, 2019, https://www.refinery29.com/en-us/marital-rape-in-relationships-statistics.

  3. 3.

    Ibid.

  4. 4.

    Akina Mama Wa Afrika, ‘Uganda Baseline Study Report’ (2017): 11, https://www.akinamamawaafrika.org/wp-content/uploads/2019/10/AMwA-Baseline-report-FINAL-1.pdf; Also see Iryna Zablotska et al., ‘Alcohol Use, Intimate Partner Violence, Sexual Coercion and HIV Among Women Aged 15–24 in Rakai, Uganda’, in 13 AIDS Behav (2009): 225–233, 230, https://link.springer.com/content/pdf/10.1007/s10461-007-9333-5.pdf; https://www.hrw.org/legacy/campaigns/women/aids/factsheet.html.

  5. 5.

    The Prosecutor v. Jean-Paul Akayesu (Trial Judgement), ICTR-96-4-T, International Criminal Tribunal for Rwanda (ICTR), September 2, 1998, https://www.refworld.org/cases,ICTR,40278fbb4.html.

  6. 6.

    Statute of the International Tribunal for Rwanda, article 3 states that the International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: (g) rape https://unictr.irmct.org/sites/unictr.org/files/legal-library/100131_Statute_en_fr_0.pdf.

  7. 7.

    Supra note 5, paragraph 597–598.

  8. 8.

    Zahara Nampewo, ‘Till Violence Do us Part: A Critical Analysis of the Legal Regime on Cruelty as a Ground for Divorce in Uganda’, in The Politics of Putting Asunder; Divorce, Law and the Family in Uganda, edited by Nassali Maria (2016): 142.

  9. 9.

    Prima Kwagala, Advocate and Executive Director, Probono-Women Initiative, confirmed that although she has a number of women who seek divorce following indecencies of marital rape they prefer not to term the incidences as marital rapespeak, June 12, 2020.

  10. 10.

    Beatrice Nakibuuka, ‘Marital Rape, the Plague Silently Afflicting Women’, The Daily Monitor, March 19, 2016, https://www.monitor.co.ug/Magazines/Full-Woman/Marital-rape-the-plague-silently-afflicting-women/689842-3122730-d0kl8y/index.html.

  11. 11.

    Website of Indiana Coalition Against Sexual Assault, https://www.rainn.org/pdf-files-and-other-documents/Public-Policy/Issues/Marital_Rape.pdf.

  12. 12.

    Patience Akumu, ‘The Phenomenon on Marital Rape’, The Observer Newspaper, May 26, 2010, https://observer.ug/lifestyle/73-people-society/8645-the-phenomenon-of-marital-rape.

  13. 13.

    The Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, provides for sexual offences section and illegalises marital rape. Section 56 provides that it is no defence for any accused person charged with a sexual offence to contend that a marital or other relationship exists or existed between him or her and the complainant.

  14. 14.

    The Combating of Rape Act of 2000, section 2(3) provides that rape within marriage or other relationship is specifically prohibited.

  15. 15.

    Criminal Law Codification and Reform Act, section 68(a) which states unequivocally that the fact that a victim of rape was the spouse of the person accused of rape does not suffice as a defence.

  16. 16.

    Law No.59 of 2008 (Criminalize Marital Rape) states that it is forbidden to make sex with one’s spouse without their consent.

  17. 17.

    J. Oloka-Onyango, ‘An Overview of the Legal System in Uganda’, Presentation at the China-Africa Legal Forum, November 25, 2015, https://www.researchgate.net/publication/341776281_AN_OVERVIEW_OF_THE_LEGAL_SYSTEM_IN_UGANDA.

  18. 18.

    Hale’s pronouncement was accepted as an enduring principle of the common law as evidenced by the first edition of Archbold, A Summary of the Law Relative to Pleading and Evidence in Criminal Cases (1822), which simply stated: ‘A husband also cannot be guilty of a rape upon his wife’.

  19. 19.

    R v Clarke [1949] 2 ALLER 448.

  20. 20.

    Ibid., paragraph 449.

  21. 21.

    R v Miller [1954] 2 QB 282; R v Kowalski (1987) 86 Cr App R 339; R v Sharples [1990] Crim LR 198 and R v J [1991] 1 ALL ER 759.

  22. 22.

    R v O’Brien [1974] 3 ALLER 663.

  23. 23.

    R v Steele [1976] 65 CRIM LR 188.

  24. 24.

    R v R [1991] UKHL 599, 61612; paragraphs B-D, https://www.iclr.co.uk/wp-content/uploads/media/vote/1971-1995/RvR_ac1992-1-599.pdf.

  25. 25.

    R v C [1991] 1 All ER 755.

  26. 26.

    Ibid., paragraph 758.

  27. 27.

    People v. Liberta 90 A.D. 2d 681, https://www.law.cornell.edu/women-and-justice/resource/people_v_liberta.

  28. 28.

    The Uganda Order in Council, 1902, https://books.google.com/books/about/The_Uganda_Order_in_Council.html?id=YkDlNAEACAAJ.

  29. 29.

    Ministry of Gender, Labour and Social Development, Combined 4th, 5th, 6th and 7th Periodic Report on the Implementation of CEDAW in Uganda (2009), 128, https://www2.ohchr.org/english/bodies/cedaw/docs/AdvanceVersions/CEDAW-C-UGA-7.pdf.

  30. 30.

    Organisation for Economic Co-operation and Development Development Centre, ‘Social Institutions & Gender Index’, https://www.genderindex.org/wp-content/uploads/files/datasheets/2019/UG.pdf.

  31. 31.

    Uganda Police ‘Annual Crime Report 2019’ (2019): 16, https://www.upf.go.ug/wp-content/uploads/2020/04/Annual-Crime-Report-2019-Public.pdf?x45801.

  32. 32.

    Indiana Coalition Against Sexual Assault, supra note 11.

  33. 33.

    Accession by Uganda on the November 3, 1986.

  34. 34.

    Accession by Uganda on the July 21, 1995.

  35. 35.

    UDHR, article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood (Also see article 26 of the ICCPR).

  36. 36.

    UDHR, article 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. (See also ICCPR, article 7).

  37. 37.

    Adopted and opened for signature, ratification and accession by General Assembly resolution 34/180 of 18 December 1979. Uganda ratified the Convention in 1985.

  38. 38.

    CEDAW, articles 1 and 2 on discrimination against women.

  39. 39.

    CEDAW, article 16.

  40. 40.

    Melanie Randall and Vasanthi Venkatesh, Symposium on the International Legal Obligation to Criminalise Marital Rape Criminalising Sexual Violence Against Women in Intimate Relationships: State Obligations Under Human Rights Law (2015), https://core.ac.uk/download/pdf/42550941.pdf.

  41. 41.

    DEVAW, articles 1 and 2.

  42. 42.

    Ibid.

  43. 43.

    Akina Mama Wa Afrika, supra note 4, 14.

  44. 44.

    Adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force October 21, 1986. Ratified by Uganda on the March 27, 1986.

  45. 45.

    African Charter, articles 3 and 19.

  46. 46.

    African Charter, article 5.

  47. 47.

    African Charter, article 18(3).

  48. 48.

    Adopted in July 2003 and came into force on the November 25, 2005. Ratified by Uganda on July 22, 2010.

  49. 49.

    Maputo Protocol, article 1(j).

  50. 50.

    Maputo Protocol, article 6.

  51. 51.

    Adopted on January 29, 2018.

  52. 52.

    Disability Rights Protocol, article 7(j).

  53. 53.

    The desired effect and impact of this Policy is to offer opportunities for empowerment of women, guarantee their protection against violence and rape, as well as ensure their participation in public and economic life.

  54. 54.

    It was adopted by the AU Assembly in 2004, calling for member states’ continual action towards achieving gender equality and reinforcing their commitment to international and regional women’s rights instruments. In addition to calling for wider ratification of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, it also addresses state responsibility for tackling violence against women and gender-based discrimination.

  55. 55.

    One of the objectives of the Protocol is to provide protection for women and children against the impunity of sexual violence in the specific context of the Great Lakes region.

  56. 56.

    It recommends that member states allocate funds from the national budget to projects related to the prevention of SGBV and assistance to survivors, strengthening on institutions working on SGBV.

  57. 57.

    Akina Mama Wa Afrika, supra note 4, 14.

  58. 58.

    The Constitution, article 21.

  59. 59.

    Under article 44, this right is a non-derogable right.

  60. 60.

    Constitution, article 33(5).

  61. 61.

    Constitution, article 32(2).

  62. 62.

    Constitution, article 2(2): The Constitution is the supreme law in Uganda.

  63. 63.

    Zahara, supra note 8, 144.

  64. 64.

    The Prosecutor v. Jean-Paul Akayesu, supra note 5.

  65. 65.

    Domestic Violence Act 2010, section 2.

  66. 66.

    In addition to the above, there are several policies specifically addressing Gender-Based Violence (GBV). One is the National Policy on the Elimination of GBV in Uganda and its Action Plan which was launched in 2016 and is consistent with the Uganda Gender Policy 2007. Others include the National Action Plan on Women 2008 and very specific to Violence Against Women is the National Referral Pathway for Prevention and Response to Gender-Based Violence Cases in Uganda 2013. The National Policy Guidelines and Service Standards for Reproductive Health Services also clearly stipulate the range of services that should be offered to survivors of GBV.

  67. 67.

    Clause 17 provides that Conjugal rights are the right of sexual intercourse between a husband and wife and that a spouse may deny the other spouse the right to sexual intercourse on reasonable grounds which may include: poor health; surgery that affects the capacity to engage in sexual intercourse; child birth; or reasonable fear that engaging in sexual intercourse is likely to cause physical or psychological injury or harm.

  68. 68.

    The Bill was tabled for the first reading in parliament on November 26, 2019.

  69. 69.

    The Marriage Bill has been shelved since 2013 and is under negative criticism by various stakeholders especially the men who do not want to change the status quo they are enjoying.

  70. 70.

    Winnie B Watera, ‘Comment: Marital Rape Controversy-Prejudices Hinder Progress on a Law That Could Improve the Lives of Women’, The Independent, November 28, 2016. https://www.independent.co.ug/comment-marital-rape-controversy/.

  71. 71.

    Constitutional Petition No. 2 of 2003.

  72. 72.

    Constitutional Appeal No: 02 of 2014.

  73. 73.

    Criminal Session Case 005 of 2002.

  74. 74.

    Ibid., 8.

  75. 75.

    Criminal Case No. 109 of 2016.

  76. 76.

    Criminal Session No. 361 of 2013.

  77. 77.

    Indiana Coalition Against Sexual Assault, supra note 11.

  78. 78.

    Ibid.

  79. 79.

    Ibid.

  80. 80.

    Ibid.

  81. 81.

    Beatrice Nakibuuka, ‘Marital Rape, the Plague Silently Afflicting Women’, The Daily Monitor, March 19, 2016, https://www.monitor.co.ug/Magazines/Full-Woman/Marital-rape-the-plague-silently-afflicting-women/689842-3122730-d0kl8y/index.html.

  82. 82.

    Esther Nanfuka et al., ‘Leaving a Violent Child Marriage: Experiences of Adult Survivors in Uganda’, Social Sciences (2020), file:///C:/Users/DELL/Downloads/Leaving%20a%20Violent%20Child%20Marriage.pdf.

  83. 83.

    Ibid.

  84. 84.

    Ibid.

  85. 85.

    Patricia Mahoney and Linda M Williams, ‘Sexual Assault in Marriage: Prevalence, Consequences, and Treatment of Wife Rape’, Family Research Laboratory (2007), http://www.ncdsv.org/images/nnfr_partnerviolence_a20-yearliteraturereviewandsynthesis.pdf.

  86. 86.

    Ibid.

  87. 87.

    Ibid.

  88. 88.

    Ibid.

  89. 89.

    Mutayati, ‘Uganda: Violence Against Women Unabated Despite Laws and Policies’, https://www.un.org/africarenewal/news/uganda-violence-against-women-unabated-despite-laws-and-policies.

  90. 90.

    Ibid.

  91. 91.

    Ibid.

  92. 92.

    The HiiL ‘Innovating Justice: Justice Needs in Uganda 2016 Report on Access to Justice’. https://www.hiil.org/wp-content/uploads/2018/07/Uganda-Mini-Folder_2016.pdf; Legal Aid Service Providers Network (LAPSNET), ‘The Status of Access to Justice for Poor, Marginalised and Vulnerable People of Uganda’ (2017). http://www.laspnet.org/joomla-pages/reports/research-reports/377-access-to-justice-for-the-poor-marginalised-and-vulnerable-people-of-uganda/file.

  93. 93.

    Ibid.

  94. 94.

    Ibid.

  95. 95.

    Akina Mama Wa Afrika, supra note 4, 16.

  96. 96.

    Ibid.

  97. 97.

    Mutayati, supra note 89.

  98. 98.

    Akina Mama Wa Afrika, supra note 4, 16.

  99. 99.

    Christine Wanjala, ‘Marital Rape: Is It a Crime or a Conjugal Right?’, Monitor Newspaper, March 16, 2013.

  100. 100.

    Parliament granted Hon. Komakech Lyandro leave to introduce a private member’s Bill entitled ‘The National Legal Aid Bill’ 2018 on September 25, 2020.

  101. 101.

    Constitution, article 126.

References

Download references

Author information

Authors and Affiliations

  1. School of Law, Makerere University, Kampala, Uganda

    Patricia A. P’Odong

  2. Network for Public Interest Lawyers (NETPIL), Makerere University, Kampala, Uganda

    Barbara L. Can

Authors
  1. Patricia A. P’Odong
    View author publications

    You can also search for this author in PubMed Google Scholar

  2. Barbara L. Can
    View author publications

    You can also search for this author in PubMed Google Scholar

Editor information

Editors and Affiliations

  1. Faculty of Law, Centre for Human Rights, University of Pretoria, Hatfield, Pretoria, South Africa

    Ashwanee Budoo-Scholtz

  2. Faculty of Law, Rhodes University, Grahamstown/Makhanda, South Africa

    Emma Charlene Lubaale

Rights and permissions

Reprints and permissions

Copyright information

© 2022 The Author(s), under exclusive license to Springer Nature Switzerland AG

About this chapter

Check for updates. Verify currency and authenticity via CrossMark

Cite this chapter

P’Odong, P.A., Can, B.L. (2022). Combating Marital Rape: The Law and the Criminal Justice System in Uganda. In: Budoo-Scholtz, A., Lubaale, E.C. (eds) Violence Against Women and Criminal Justice in Africa: Volume II. Sustainable Development Goals Series. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-75953-7_5

Download citation

  • DOI: https://doi.org/10.1007/978-3-030-75953-7_5

  • Published:

  • Publisher Name: Palgrave Macmillan, Cham

  • Print ISBN: 978-3-030-75952-0

  • Online ISBN: 978-3-030-75953-7

  • eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics

Search

Navigation