Court Outlaws Marriages of Girls Below 18 Years

The Constitutional Court sitting in Kampala has ruled illegal all laws that allow girls that are below 18 years of age to get married. In a petition filed by Kampala civil rights activist Michael Aboneka and Kirya Martins, a five-judge panel unanimously held that any law that allows girls below the age of 18 to marry is inconsistent with the 1995 Constitution and therefore null and void.  

In 2021, Aboneka and Kirya petitioned the Constitutional Court, which is charged with interpreting the constitution, claiming that Section 11 (a) of the Customary Marriage (Registration) Act, says that girls between 16 to 17 years may lawfully enter a customary marriage, a thing the petitioners argued contravenes Article 31 (1) of the 1995 Constitution, which sets the minimum age for marriage for women at 18 years. 

The petitioners also challenged Section 4 (a) and 5 (r) (a) of the Marriage and Divorce of Mohammedans Act and section 2 (1) (c) of the Hindu Marriage and Divorce Act, on similar grounds. The petitioners also contended that section 11 (a) and (b) of the Customary Marriage Registration Act sets a different minimum age for marriage- 16 years for the woman and 18 years for the man, which they said contravene the right of women to equal treatment with men and therefore, inconsistent with Articles 33 (4) of the Constitution. 

They also challenged section 3 of the Muhammadan Act, which allows for the appointment of guardians for purposes of giving consent to marriage on behalf of a bride below the age of 18 years, saying that it is inconsistent with Article 31, which provides that women may only marry if 18 years or older. 

At the hearing of the case, two issues were framed for determination which are; whether the impugned provisions are in contravention of and/or inconsistent with the cited provisions of the 1995 Constitution and whether the petitioners are entitled to the remedies sought. In a lead judgment written by now Supreme Court, Justice Elizabeth Musoke, the court found that indeed the said provisions were inconsistent with the constitution.  

“I would declare that Section 11 (a) of the Customary Marriage (Registration) Act, Cap. 248; Section 5 (1) (a) of the Marriage and Divorce of Mohemmedans Act, Cap. 252 (to the extent that it permits registration of marriages involving persons below the age of 18 years) and Sections 2 (1) (c) and (d) and 3 of the Hindu Marriage and Divorce Act, Cap. 250 are in contravention and/or inconsistent with Article 31 (1) of the 1995 Constitution (as amended), because they permit girls between the age of 16 and 17 years to marry, yet the highlighted constitutional provision permits the marriage of only girls aged 18 years or older…I would therefore declare that the impugned provisions in (a) are null and void,” the judgment reads in part. 

The other four justices who agreed with Musoke’s reasoning are Fredrick Egonda-Ntende, Christopher Madrama, Monica Mugenyt, and Christopher Gashirabake. 

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