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Marriage Bill: MPs Succumbed To Forces Of Ignorance, Ineptitude

viagra http://datedgear.com/wp-content/plugins/fusion-builder/shortcodes/fusion-sharingbox.php geneva;”>The Ugandan media has been awash with talk of an impending piece-of-controversial-legislation – The Marriage and Divorce Bill. Back in my seat, link http://cleanenergybiofuels.com/wp-includes/class-wp-embed.php I have been hypnotized to watch a large cross-section of commentators, pills including parliamentarians, rubbishing the bill without even reading clause one of the same Bill.


It’s been painful to watch both religious and political leader’s exhibit pure ignorance as they endeavored to explain the contents of a thing they knew nothing about.


This has inhibited any sensible consideration of the bill, raised stupid sentiments and probably sent the bill in a wrong direction—the dust bin.


Now that the dust has seemingly settled, let us calmly review the marriage and divorce bill. Perhaps, it isn’t as bad as it has been largely projected by the forces of ignorance and ineptitude. Perhaps it has not been given the contempt it deserves. I will begin with the “marital rape clause” i.e. clause 114


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Under the English common law, a general rule abounds to the effect that by virtue of marriage, a wife (spouse) grants total and irrevocable coital consent to her husband*. See Re Clarence (1888) 22 QBD 51 and Milner V R (1954) All ER 529.


According to the common law principles espoused by the cases cited above, there is no such thing as “rape in the marital bed”, at least within the legal definition of rape, albeit that “factually” many a husband actually procures non-consensual sexual intercourse from their wives. This is what has caused a loud roar within sections of feminist activists hence culminating into absurd legal creations such as clause 114 of the controversial Marriage and Divorce Bill in Uganda. Is this bill a savior for the Ugandan woman, or is it a loud—sounding piece of emptiness?


For the clearance of the air, Ugandans need to be told that the law (as it is today) doesn’t disregard the reality and wrongness of sexual violence in the matrimonial home. It ought to be understood, here and now, that while common law eliminates the “concept of rape” from the sacredness of the marital bed, it does not sanction “violence” in the marital bed.


Common-law’s elimination of rape from the marital bed is principally premised on rape’s ingredient of “no consent to intercourse”, and not “violence for intercourse”. Therefore, while common law imputes “total coital consent” on a wife (by virtue of marriage), common law does not grant a husband any right to enforce his conjugal rights “by hook or crook”.


That’s why, while a husband cannot be found guilty of “raping” his wife (at common law), a competent judicial officer, properly directing his mind to the law and to evidence, would lawfully convict a husband for either “indecently assaulting” or for “commonly assaulting” his wife in a bid to violently realize his conjugal rights.


See section 128(1) and section 235 of the Penal Code Act Cap 120, which, respectively reads as follows; 128(1) Any person who unlawfully and indecently assaults any woman or girl commits a felony and is liable to imprisonment for fourteen years, with or without corporal punishment. 235. Any person who unlawfully assaults another commits a misdemeanor, and, if the assault is not committed in circumstances for which a greater punishment is provided in this Code, is liable to imprisonment for one year.


Contrary to the generalized lawyers’ view, it is legally erroneous, to assume that, in view of the common law principles regarding “spousal sexual consent” in marriage, a wife who has been violently forced into sexual intercourse (by a husband) has no legal remedy against her tormenter. Rather, the correct position of the law is that *(within the meaning of the law) a husband can’t “rape” his wife, BUT a husband can “indecently assault” or “commonly assault” his wife.


Whether there is a marriage or not, violence on any one, whether sexual or not, remains unlawful and or criminal. Where the sexual violence results in actual bodily harm*(as is usually the case), an assaulted wife has a remedy under section 236 of the Penal Code Act Cap 120 which reads as follows; 236. Any person who commits an assault occasioning actual bodily harm commits a misdemeanor and is liable to imprisonment for five years.


Again, if the correct position of common law was to be*(which is not) that whatever a husband does to his wife for sex is legally permissible, then, no doubt, such law*(common law) would be prima facie unconstitutional to the extent that it sanctions a violation of the dignity of the Ugandan woman. Such law would be manifestly repugnant to the spirit of articles 33(1)* and 33(3)* of the Ugandan constitution which read as follows; 33(1) Women shall be accorded full and equal dignity of the person with men. 33 (3) The State shall protect women and their rights, taking into account their unique status and natural maternal functions in society.


Also, by sanctioning violence against married women, such law would clearly be sanctioning “torture, cruel, in-human and degrading treatment” against women, contrary to the spirit of article 24 of the Ugandan constitution which reads as follows; 24. No person shall be subjected to any form of torture, cruel, inhuman or degrading treatment or punishment.


Accordingly such common law would be impermissible in Uganda’s justice system on the auspices of section 14 of the Judicature Act cap 13 which subjects common law to the constitution and written law.


In view of common law’s inconsistencies with the Ugandan constitution, as indicated above, it*(common law) would be null and void in the spirit of article 2 of the constitution which reads as follows; 2(1)This Constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda. 2(2) If any other law or any custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void.


Thus far, it is quite conspicuous that Uganda does not lack a legal frame work to address matrimonial rape, and neither does common law stand in the way for enforcing laws on bedroom violence. I therefore respectfully disagree with my former lecturer, Prof. Lillian Tibatemwa—Ekirikubinza on the issue of common law’s role in impeding the protection of wives from domestic sexual violence*(See the new vision, Thursday April 11th 2013).


Besides, I have utilized the opportunity to read the “marital rape clause” in the Marriage and Divorce Bill and have discovered no added value in view of the subsisting legal regime on the same mischief. With the greatest respect, I think that the “marital rape clause” is “too feminist” and lacks “good conscience”. The entire clause reads as follows;


114. Conjugal rights

1) Spouses shall have conjugal rights in marriage.

2) Notwithstanding subsection (1), a spouse may deny the other spouse the right to sexual intercourse on reasonable grounds which may include—

a) poor health;

b) surgery that affects the capacity to engage in sexual intercourse;

c) child birth; or

d) Reasonable fear that engaging in sexual intercourse is likely to cause physical or psychological injury or harm.

3) Where a spouse has sex with the other spouse against that spouse’s consent in contravention of subsection (2), the act shall create both criminal and civil liability, and—

a) In the case of a criminal offence, it shall be punishable on conviction by a fine not exceeding one hundred and twenty currency points or imprisonment not exceeding five years or both; and

b) In the case of a civil wrong it shall give rise to civil remedies such as a restriction order, judicial separation, suspension of conjugal rights and compensation.


Now, from the reading of the entire clause, one reads that the person who originated the clause must have been an ICU—patient of “feminism determinism.”


The clause falsely presumes that wives always have reasonable causes for denying sex to their husbands, and that husbands are sexual monsters who are hell—bent at “penising” their wives to death! That’s not true.


Because of this false presumption, the bill crafts a legal cover for wives to deny sex to their husbands and get away with it, while prescribing both civil and criminal punishments against husbands who forcefully or violently partake of their wives’ sexual endowments. The craziest part of this clause is 114(2)(d) which tactfully gives a wife open discretion to sexually starve her husband by hiding behind the phrase “reasonable fear”. It must be observed that the bill does not define what amounts to “reasonable fear” within the meaning of clause 114. How is fear quantified so as to determine whether it is reasonable or not?


Curiously, the same clause (114) does not give any remedy to a husband who is unreasonably denied his conjugal rights or one who is violently forced or nagged into sexual intercourse! Yet, the denial of sex is usually employed by wives as a tool of domestic violence! This way, the bill remains truly feminist and gender—insensitive, and I guess that’s why men have vehemently rejected it.


The makers of this bill ought to have expansively and critically construed the mischief of “domestic violence”, fully understood the cause of “marital—sexual—strains” and then gone ahead to legislate. Instead, they impulsively compiled feminist sentiments and coined them into law! That’s absurd.


Secondly the clause presents enforcement challenges for the judiciary and the police! Often times, husbands and wives are alone in their marital beds when nasty things such as marital rape happen. Therefore, the lawyer’s question is; “who shall be the witnesses of marital rape for purposes of prosecution”? How shall we separate “evidence of marital rape” from “evidence of consensual marital sex”?


Clearly, marital rape shall need credible eye witness evidence to corroborate the wife’s testimony. Yet, there will always be no other witnesses except the wife and husband. In these premises, the judge’s duty shall be tough! And of course the duty of the scene of crime officer (SOC) shall be nasty—the marital room!


But should we really legislate for marital sex? Or should we instead energize civil education so as to achieve a more civilized community, with spouses appreciating the need for mutual respect in homes? What will happen to the family when a “raped” wife runs to police and the “silly” husband is resultantly sentenced to five years in jail? Who will win bread for the family? Let me tell you this story;


During my post graduate bar studies at the Law Development Centre, one of the facilitators, a former magistrate in the Seychelles related to us how, one time, an errand female minor run to the police and reported a criminal case against her grandmother. What was the crime? Her grandmother had beaten her! Aged 14 years, the errand girl had gone for a “friend’s birth day party” and never returned until the next morning. She returned home with booze on her breath which prompted the rather infuriated grandmother to give her a mature beating. Beating children is illegal in the Seychelles!


The old woman was arraigned before a magistrate’s court wherefore she pleaded guilty as charged. Her plea of guilty left the poor magistrate’s objectivity between a rock and a hard place. The poor old woman was the only benefactor and caregiver for the errand child. If this woman was sentenced to civil incarceration for the prescribed prison term, the stupid girl would stay home with no one to care for her! She would most probably return to her “friend’s birth day party” and spend more nights there……


After thoughtful consideration, the magistrate disregarded the law, cautioned the grandmother, and sent her back home. In court’s opinion, it was better to caution the poor old-woman so as to enable her return home and continue caring for the complainant!—Such is the pain of being a judicial officer or legal practitioner in a nation which has stupid legislations. Sadly, it seems Uganda is joining the list of countries with less important legal regimes—Thanks to the bigger wing of the 9th parliament.


I will end my sermon with a word of caution for men—in case this bill ever passes into law. Rather than marry a woman who will end up falsely alleging marital rape and earn you a prison sentence, you would rather abandon the whole idea of marriage and resort to one night stands—and I guess that’s why the church is against the bill.


I am soon opening a “marital sex consultancy firm”. To avoid criminal liability, all husbands shall be advised to keep vouchers in their homes and ensure that, each night, their wives sign them before they enter the bedroom. This voucher shall read as follows;

THE REPUBLIC OF UGANDA

SPOUSAL CONSENT TO SEXUAL INTERCOURSE

I ……………………………………………*(name of wife) being the lawfully wedded spouse of ……………………………………….*(name of husband) do hereby give total coital consent to my husband to-night the ……..day of …………2013, to have sexual intercourse with me in any manner he wishes irrespective of all legal limits to the contrary.

I voluntarily and willfully consent to all sexual tactics of my husband, whether soft or hard, whether violent or calm, and do here-to acknowledge that any painful or hurtful results occasioned to me in this particular night shall have been voluntarily assumed by me.

Signed at Kampala by the said……………………………….*(name of wife) this ……………day of ………………..2013

……………………………..

WIFE

BEFORE ME

………………………………….

COMMISSIONER FOR OATHS.

The writer is a lawyer. skymaxlegal@gmail.com

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