THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

[CIVIL DIVISION]

MISC. CAUSE NO. 08 OF 2016

1. HON. KRISPUS AYENA ODONGO

2. MRS. HILDA MARRIS AYENA ……APPLICANTS

THE PEPPER PUBLICATIONS LTD RESPONDENT

BEFORE: HON. LADY JUSTICE P. BASAZA - WASSWA

RULING

Representation:

Mr. Isaac Ssemakadde for the Applicants

Mr. Mutabingwa Maxim for the Respondent

Background:

[1] By notice of motion brought under Article 50 of the 1995 Constitution and sec. 98 of
the Civil Procedure Act (‘the CPA’), the Applicants; Ayena Odongo and Marris Ayena
(‘the Applicants’) brought the present application against The Pepper Publications Ltd
(the Respondent).

[2] In their application the Applicants seek for a declaration that the Respondent infringed
their and their Children’s fundamental Human rights and Freedoms protected under
Articles 24, 27 and 31 of the Constitution. They also seek for an Order directing the
Respondent to publish a full and unreserved apology to them and their children, and
for an Order for a permanent injunction. They also seek for general, aggravated and
punitive damages and costs of the suit.
1
[3] The subject of the present application is a complaint that the Respondent published,
in its newspapers; viz. The Red Pepper, Sunday Pepper, Kamunye and Kamunye Ku
Ssande, on January 15, 18, 19 & 20, 2016 and on August 29, 2016 and in their online
editions, several nude photographs and articles of the 1st Applicant having sexual
relations with a woman, in a bedroom – like setting. (Hereinafter collectively referred
to as ‘the impugned publications’).

[4] For context, I should point out here that the impugned publications carried the
following headings, sub-headings and captions, to mention but a few;

‘TOP MP FILMED BONKING BABE’

‘MP AYENA LOOKS DAZED AND KNACKERED AFTER THE SEX MARATHON’

‘NEW DETAILS ON SEX TAPE MP EMERGE’

‘Horny MP Faces Arrest’

‘SEX TAPE MP SPEAKS OUT’

‘Ayena in action in the leaked sex video’

[5] From the affidavits of both parties, it was not in dispute that the impugned publications
were indeed published by the Respondent and that they were true.

The Applicants’ case:

[6] The gist of the Applicants’ case as contained in their four (4) affidavits in support of
their application, is;

a) That whereas the content of the impugned publications is true,

i) by publishing the same, without their authorization and consent, the

Respondent interfered with, invaded and infringed on their privacy, dignity
and tranquility of family life in contravention of Articles 24, 27 & 31 of the
1995 Constitution.

ii) the 1st Applicant had a reasonable expectation of privacy at all times and
did not know he was being recorded.
2
 b) That as a result of the Respondent’s said actions, they have suffered
embarrassment, distress, humiliation, anguish, confusion, depression,
devastation and pain as a family and as individuals. They have also suffered
indignity, stigma and ridicule from sections of society.

c) That at the time of filing their application, they have eight children, three minors
and 3 attending University Education and have six (6) grandchildren.

d) That the Respondent has no right or lawful excuse or reasonable justification for
having published and for continuing to publish the impugned publications in
their newspapers or at all.

e) That the Respondent only intended to unjustly enrich itself while embarrassing
the 1st Applicant and causing him and his family pain. The Respondent’s
actions go beyond the permissible exercise of freedom of press and are a
breach of Journalistic principles of fairness and balance.

f) That the timing of the impugned publications, which coincided with the 1st
Applicant’s maiden appearance at the ICC as lead Counsel of Dominic Ongwen
and his campaign for re-election to the 10th Parliament as Oyam North Member
of Parliament, following a court order that nullified his opponent’s victory in 2016
general elections, was intended to derail the 1st Applicant’s campaign whilst
gaining maximum revenue at the expense of the latter’s dignity and professional
and political reputation.

The Respondent’s case:

[7] The gist of the Respondent’s case as contained in its two (2) affidavits in reply sworn
by its Managers; legal services and Business respectively, is;

a) That the impugned publications are true in fact and substance and were
published by the Respondent while exercising its right and duty of publishing a
newspaper.
3
 b) That the impugned publications are not defamatory of the Applicants and do
not infringe on any of their rights or other person.

c) That the Respondent is not prohibited by law from publishing the material
complained of by the Applicants.

d) That the impugned publications do not invade the privacy of the Applicants and
were not published maliciously as alleged and no damage was suffered by the
Applicants.

e) That the impugned publications concern the 1st Applicant and not the 2nd
Applicant or any person or their children. The 2nd Applicant or their children do
not have a right to bring this suit against the Respondent.

f) That the mode of bringing the suit is not proper.

g) That there is no proof that the 2nd Applicant; Hilda Marris Ayena is a wife to
Hon. Ayena.

[8] In answer, the Applicants rejoined as follows;

a) That the 2nd Applicant is the wife of the 1st Applicant, as shown by a customary
marriage certificate registered by the Sub – County Chief in Oyam District on
31/10/2015, marked HMA – 3 to their affidavit in rejoinder.

b) That the impugned publications juxtaposed with the 1st Applicant’s legal,
business and private affairs, which happened long ago, are hell – bent on
polluting the latter’s client pool and endangering the family’s source of livelihood
and dignity as a family.

Issues for determination:

[9] The following issues arise for determination in this matter;

(Order 15 Rule 5 of the CPR, applied).

4
 1. Whether this application is competent in law?

2. Whether by publishing the impugned publications, the Respondent infringed or

threatened to infringe the Applicants’ rights as alleged?

3. Whether the impugned publications were justified?

4. What remedies, if any, are available to the parties?

Submissions of Counsel:

[10] In support of and in opposition to this application, learned Counsel for each party
made their respective written submissions that I shall refer to, where and when
necessary, in my analysis below.

Analysis:

Issue No. 1:

Whether this application is competent in law?

[11] Learned Counsel for the Respondent; Mr. Mutabingwa submitted that this application
is not competent in law. He raised three points. He argued first that the application
is a nullity for being supported by false affidavits. That it is not possible that the 1st
and 2nd Applicants married in 2015 and in a few months already produced University
going Children and grandchildren.

He also argued that Oyam District local Government is not a competent body to
register Customary Marriages according to the Customary Marriage Registration Act
and therefore the marriage certificate is void.

[12] Secondly, that an application brought on behalf of eight (8) unnamed children is a
nullity.

5
[13] Thirdly, that the Applicants have improperly and wrongly brought this application under
Article 50 of the Constitution. That the nature of the Applicants’ claim for damages
for defamation, can only be brought by way of an ordinary plaint and not by notice of
motion.

That the High Court has no jurisdiction to hear the present application which involves
the interpretation of the Constitution.

Learned Counsel relied for his propositions on Charles Twagira v. the Attorney General
& 2 Ors1 and James Rwanyarare v. the Attorney General2.

[14] In answer, learned Counsel for the Applicants; Mr. Ssemakadde argued that this
application is competent in law. He submitted;

First that the fact that all or some of the Applicants’ children may not be the issue of
the Applicants’ marriage is inconsequential. Citing Art. 21 of the Constitution, he
argued that Uganda law treats all children of each applicant equally as members of
the Applicants’ family. That the legitimacy or illegitimacy of the Applicants’ marriage
or that of their children are irrelevant considerations in the instant case for relief under
Article 50 of the Constitution and cannot render the matter ‘incompetent’ as argued.

That a customary marriage may be registered at the sub-county and is not vitiated by
non-registration or defects and delays in registration.

[15] Secondly, that under Article 50 of the Constitution, an action cannot be incompetent
merely because it is brought in favor of ‘an unnamed person’ and that such an
objection is a mere technicality brought at the 11th hour to defeat the interests of
Justice. Learned Counsel relied for his propositions on; The Environmental Action
Network Ltd v the Attorney General and NEMA3 and Frokina Ltd v. Tororo Cement Ltd4.

1
SCCA No. 4 of 2007
2
Constitutional Petition No. 11 of 1997.
3
HCMA No. 39 of 2001
4
SCCA No. 2 of 2001
6
[16] Thirdly, that Article 50 guarantees a litigant’s right to direct access to the High Court
for enforcement of Human Rights. That the facts of this case render the procedure
adopted by notice of motion unobjectionable.

Counsel argued further that the true ratio decidendi of the Charles Twagira case, cited
by Mr. Mutabingwa is that the Court of Appeal erred in holding that an action under
Article 50 of the Constitution could only be instituted by plaint. That the procedure
can be by plaint or by notice of motion depending on the facts and nature of each
case.

[17] Learned Counsel also argued, on the question of Jurisdiction, that the High Court
possesses the requisite jurisdiction under Articles 2, 20 (2), 50 (1), 50 (2), 126 and
139 of the Constitution to grant all or any of the reliefs sought without referring the
matter to the Constitutional Court.

Citing Mbabali Jude v Edward Kiwanuka Ssekandi5 and Kikungwe Issa & 4 Ors v.
Standard Bank Investment Corporation & 3 Ors6 learned Counsel submitted that there
is a difference between applying and enforcing the provisions of the Constitution and
interpreting the Constitution. That invoking the power of the High Court to enforce
or apply the provisions of the Constitution does not entail interpretation thereof.

[18] From the outset, I will make it clear that the question raised on the procedure by notice
of motion, was a question that was already determined by this Court.

By way of a preliminary objection, learned Counsel; Mr. Mutabingwa made the very
same argument that he now makes. He argued that the procedure by notice of
motion under which this application was brought is wrong. That the Applicants should
have brought this application by ordinary plaint. I overruled him in my Ruling dated

5
Constitutional Petition No. 28 of 2012
6
HCMA Nos. 394 of 2001 & 395 of 2004
7
 January 25 2017, (refer to my Ruling) and allowed the application to proceed on its
merits.

[19] I maintain the same position; an application brought to the High Court seeking for the
enforcement of Human Rights and Freedoms under Article 50 of the Constitution may
be brought by notice of motion.

The present application is not a claim for damages for defamation as wrongly stated
by Mr. Mutabingwa. As I understand it, it is a claim seeking redress for the
enforcement of Human Rights and Freedoms.

Indeed I also agree with Mr. Ssemakadde that the ratio decidendi of the Charles Twagira
case (supra), is that an action brought to the High Court under Article 50 of the
Constitution can be by plaint or by notice of motion depending on the facts and nature
of each case.

[20] Suffice it to point out that the newly enacted Human Rights (Enforcement) Act, 2019
did not change that position and only provides that Parliament will make Regulations
thereunder. Parliament is yet to make the Regulations.

[21] I now turn to the objection to the Jurisdiction of this Court to hear matters brought
under Article 50 of the Constitution. In my view, this is a settled question.

In a wealth of authorities, including the Twagira case (supra), it has been espoused
that the High Court has Jurisdiction to entertain applications brought under Article 50,
to redress any claims of infringement of fundamental or other rights or freedoms
guaranteed under the Constitution. There is a proviso only that such applications
should not involve the interpretation of the Constitution. Where the interpretation of
the Constitution is required, then the action should be filed in the Constitutional Court
by way of a Petition.

[22] Learned Counsel; Mr. Mutabingwa argued that this application involves the
interpretation of the Constitution and that as such it should be referred to a fully
8
 constituted Constitutional Court by virtue of Article 137 of the Constitution. According
to him, the question to be interpreted is; ‘whether Sec. 2 of the Press and Journalist Act, Cap
105 infringes or contravenes Articles 24, 27 and 31 of the Constitution?.

[23] I respectfully disagree with learned Counsel. That question he posed did not arise
out of this application either directly or by implication.

For clarity, I shall first explain the concept of ‘interpretation of the Constitution’.

I shall do so by adopting the meaning ascribed to that concept as restated by Kasule,

JA /CC in the Mbabali Jude case (supra), that;

‘interpretation of the Constitution is the ascertaining of the meaning of specific constitutional

provisions and how they should be applied in a particular context’

‘Interpretation of the Constitution also embraces the term ‘construction,’ that is inferring the
meaning of the provision (s) of the Constitution from a broader set of evidence, such as
considering the whole structure of the Constitution as well as its legislative history’.

Underlining added for emphasis.

[24] In the present application, no question or difficulty arose from the proceedings or at
all, as to the ‘meaning’ or the ‘construction’ of any constitutional provision. The
language of Articles 24, 27 and 31 of the Constitution are clear and unambiguous.

[25] Much as I shall, later on in this Ruling, address the balance between of the rights and
freedoms of the press and other media as per Article 29 (1) of the Constitution and
Sec. 2 of the Press and Journalist Act; and the rights and freedoms protected under
Articles 24, 27 and 31 of the Constitution, that analysis does not require the
interpretation of the Constitution. It simply requires its application to the facts by
affidavit evidence brought before this Court.

[26] Turning to Mr. Mutabingwa’s objection to the eight (8) unnamed Children, the
provisions of Article 50 (1) and (2) of the Constitution offer clear guidance.

Those provisions stipulate that any person or organization, can bring an action on his
/ her / its own behalf, or on behalf of another person or group of people, for the
9
 enforcement of rights and freedoms guaranteed under the Constitution. By virtue of
which provisions, the other person or group of people need not be named in the
pleadings or at all.

That stated, and in any event, it is trite that no suit can be defeated by reason of any
misjoinder or non-joinder of parties. (Order 1 Rule 9, 10 and 13 of the CPR).

[27] Lastly, the submission by Mr. Mutabingwa that the Applicants’ affidavits are false, is
a submission that is not supported by evidence.

The available evidence on the subject cited, was evidence brought by both Applicants
to the effect that they have eight (8) children and that their customary marriage was
registered in 2015. There is no affidavit evidence in rebuttal.

Respectfully I opine that it is sheer speculation by learned Counsel Mr. Mutabingwa to

argue that ‘it is impossible for the Applicants to have University going Children when they married in
2015’.

[28] In my view, the registration of a customary marriage is only the documentation or

record of the solemnization of a marriage conducted in accordance with the rites and
customs of a given tribe or society. In the present case, it was not brought to the
attention of this Court, when nor how the Applicants’ marriage was conducted and
under what circumstances. This Court will as such, hesitate to delve into that matter,
especially since that detail will not be of any assistance to Court in determining the
real controversy between the parties.

[29] Likewise, on the validity of the Applicants’ Customary Marriage certificate, I fail to draw
a nexus between that certificate and any falsity as contended by Mr. Mutabingwa.

Even if it were true that Oyam District local Government is not a competent body to
register Customary Marriages, the reliance by the Applicants on a marriage certificate
issued by that District would still not make their affidavits false. Rather the questions

10
 would be about the validity of the registration of the marriage and not the veracity of
the affidavits.

That notwithstanding, the validity of the registration per se still would not affect the
validity of the customary marriage by virtue of the provisions of Secs. 11 & 20 of the
Customary Marriage Registration Act.

Decision of this Court on Issue No. 1

[30] Having concluded each point under issue No. 1 as I have, I accordingly find issue No.
1 in the affirmative. This application is competent in law.

Issues Nos. 2 & 3 (jointly):

Whether by publishing the impugned publications, the Respondent infringed or threatened to

infringe the Applicants’ rights as alleged, and

Whether the impugned publications were justified?

[31] It is imperative to analyze issues Nos. 2 & 3 jointly as the arguments under one issue
are interdependent on the arguments under the other.

[32] The controversy between the parties is that whilst the Applicants complain that by
publishing the impugned publications, the Respondent violated their rights to privacy,
dignity and tranquility to family life, the Respondent on the other hand, contends that
they had a right to publish the impugned publications and were justified in doing so.
They also contend that the impugned publications did not infringe on any rights of the
Applicants as alleged.

[33] Learned Counsel for the Applicants; Mr. Ssemakadde submitted;

a) That all the information published was private and confidential and that sexual
behavior concerns a most intimate aspect of private life and is thus entitled to
protection under Article 27 of the Constitution.

11
 Citing several foreign and local authorities including Charles Onyango Obbo &
Anor v the Attorney General7 and Max Mosley v News Group Newspapers Ltd8
and Jovil Williams & Anor v AG of St. Christopher & Nevis9 Counsel submitted

that the content of the impugned publications were obtained surreptitiously,

assisted by covert photography when the 1st Applicant was engaged,
deliberately nude and indiscreet, in consensual sexual activities with an adult
woman on a private property.

That the widespread publication of the impugned pictures and details would
cause significant pain, distress and embarrassment to any reasonable person
of ordinary sensibilities placed in the 1st Applicant’s shoes.

That the Respondent breached the 1st Applicant’s rights under Article 27, which
when read together with Articles 20, 41, 45 and 287 and paragraphs 1 (i) &
XXVIII (i) (b) of the National Objectives and Directive Principles in the
Constitution, afford protection to information in respect of which there was a
reasonable expectation of privacy’

b) That the impugned publications were cruel, inhuman and degrading according
to a test set out by Oder, JSC in Attorney General v. Salvatori Abuki10, and
violated the Applicants’ right to dignity contrary to Articles 24 and 44 of the
Constitution.

Counsel also referred Court to the Preamble and Articles 1 & 5 of the
International Covenant on Civil and Political Rights and the Preamble and Article
7 of the African Charter on Human and People’s Rights and submitted that any
reasonable lawyer engaged in a high profile trial or politician engaged in an

7
SC Constitutional Petition No. 2 of 2002
8
[2008] EWHC 1777 (QB Division)
9
In the High Court of the Eastern Caribbean, Civil Suit No. NEVHCV2013/0120
10
SC Constitutional Appeal No. 1 of 1998
12
 election would have felt extremely embarrassed and distressed by the impugned
publications if their name were substituted for the 1st Applicant.

c) That by its impugned publications, the Respondent violated the Applicants’

family’s rights under Article 31 and 45 that include the right to family tranquility,
livelihood and sustainability.

That the right for a couple to found a family and to care and bring up their
children under Articles 31 (1) (a) & 31 (4), read together with Articles 20, 45 &
287 and paragraphs 1 (i), XIX, XXVIII (i) (b), XXIX (b), XXIX (d) of the National
Objectives and Directives Principles of State Policy in the Constitution,
altogether stress the importance of protecting the family unit using universal
human rights, norms and standards. Counsel referred Court to the Preamble
& Article 12 of the Universal Declaration of Human Rights, the Preamble &
Articles 17, 23 (1) & 23 (2) of the International Covenant on Civil and Political
Rights and the Preamble & Articles 18 (1), 18 (2), 27 (1) & 29 (1) of the African
Charter on Human and Peoples’ Rights.

d) That the impugned publications were likely to impair not only the 1st Applicant’s
sense of self-worth but also his earning capacity which would in turn prejudice
his ability to sustain his family.

e) That the impugned publications were demonstrably unjustified and against

journalistic ethics.

For his proposition, Counsel cited Bukenya & Ors v. Uganda11 and Naziwa v.
Uganda12

[34] In answer, learned Counsel for the Respondent; Mr. Mutabingwa submitted;

11
[1972] EA 549
12
CA / Crl. Appeal No. 88 of 2009
13
 a) That the Respondent had a right under sec. 2 of the Press and Journalist Act,
Cap 105 to publish the impugned publications, which impugned publications do
not infringe on the Applicants rights.

b) That the impugned publications are true and as such the Applicants were not
subjected to torture, cruel or inhuman or degrading treatment. Counsel relied
on Article 29 of the Constitution and sec. 2 of the Press and Journalist Act.

c) That the Respondents neither searched the home or property of the Applicants
nor entered their premises or interfered with their home, correspondence,
communication or other property.

d) That the complaint of the Applicants neither falls under Article 27 of the
Constitution, nor is it relevant to Article 31 as it does not concern marriage and
founding a family or divorce or dissolution of marriage.

e) That the 1st Applicant was caught committing adultery and that it is not the
Respondent that filmed them but that they obtained the pictures and published
them in their newspapers. There is no law that prohibits the Respondent from
publishing the impugned publications and the same do not infringe any rights
of the Applicant that are enshrined in the Constitution or any law.

[35] Mr. Ssemakadde rejoined that Article 29 (1) (a) of the Constitution and Section 2 of
the Press and Journalist Act do not immunize the Respondent against liability or
authorize the Respondent to publish the impugned publications.

That the Constitution envisages a harmonious, united, peaceful and productive family
whose members are protected by the State, society and the law, from trauma and
threats of social isolation and stigmatization due to unduly intrusive, exploitative and
harmful media activities.

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[36] The controversy in this matter, as earlier stated in this Ruling, involves the enjoyment
of rights and freedoms by one person or group of people, vis a’ vis the rights and
freedoms of others.

Clearly the Respondent enjoys the rights and freedoms of the press and other media
as guaranteed under Article 29 (1) (a) of the Constitution and Sec. 2 of the Press and
Journalist Act Cap. 105. However, those rights are not limitless nor boundless.

Can the press or other media be allowed to publish what they wish, however
pornographic, subversive, prejudicial to others, xenophobic or otherwise? The answer
is No.

Article 43 (1) of the Constitution and Sec. 3 of the Press and Journalist Act provide
for limitations to what the press and other media can publish. Refer also to Charles
Onyango Obbo and Anor v. Attorney General13 which is to the same effect.

[37] For clarity, I shall reproduce these provisions here:

Article 29 (1) (a) of the Constitution:

‘Every person shall have the right to –

(a) Freedom of speech and expression which shall include freedom of the press and other media;

Sec. 2 of the Press and Journalist Act Cap. 105:

‘(1) A person may, subject to this Act, publish a newspaper

(2) No person or authority shall, on the grounds of the content of a publication, take any action not
authorized under this Act or any other law to prevent the –

(a) Printing;

(b) publication; or

(c) circulation among the public, of a newspaper’

13
SC. Constitutional Appeal No. 2 of 2002.
15
 Article 43 (1) of the Constitution:

‘In the enjoyment of the rights and freedoms prescribed in this Chapter, no person shall prejudice the
fundamental or other human rights and freedoms of others or the public interest’

Sec. 3 of the Press and Journalist Act:

‘Nothing contained in section 2 absolves any person from compliance with any law-

a) Prohibiting the publication of pornographic matters and obscene publications insofar as they tend
to or corrupt public morals;
b) Prohibiting any publication which improperly infringes on the privacy of an individual or which
contains false information.

Underlining added for emphasis.

[38] The question to be answered therefore is whether in exercising its rights and freedoms
to publish and circulate the impugned publications, the Respondent prejudiced /
infringed the fundamental or other human rights and freedoms of the Applicants as
alleged?

[39] Before I delve further, it is important that I stress that fundamental rights and freedoms
guaranteed under the Constitution including; respect for human dignity and protection
from inhuman treatment (Art. 24), privacy of person, home and other property (Art.
27) and rights of the family (Art. 31) are inherent and not granted by the State. (Art.
20).

It is a legal duty imposed on all organs and agencies of Government and all persons,
to respect, uphold and promote fundamental rights and freedoms of the individual.

[40] After carefully scrutinizing the impugned publications and the averments by each party,
I find that not only were nude sex pictures of the 1st Applicant published without his
consent, but articles with inappropriate sex content were written about him, interwoven
with sarcasm about his professional and political career.

In the impugned publications the Respondent described the 1st Applicant inter alia; as
‘a veteran member of Parliament’, ‘a top MP and elderly legislator’, ‘a high profile, accomplished and

16
 st
astute lawyer’, while at the same time it published stories of the 1 Applicant’s alleged
debts and other allegations and accusations against him. These were then
juxtaposed with the nude pictures and hostile descriptions of his sexuality.

[41] In my view, by publishing the impugned publications, it is apparent that the

Respondent unjustifiably committed acts of invasion, intrusion of privacy and
degradation of the 1st Applicant’s dignity.

I have particularly taken it into account that the Respondent did not rebut the 1st
Applicant’s distressed lamentation that he did not know that he was being recorded.
Indeed, the 1st Applicant had a reasonable expectation of privacy.

[42] ‘Human dignity is the value and worth of all individuals as members of society. It is
the source of a person’s innate rights to freedom and to physical integrity, from which
a number of other rights flow…Human dignity accordingly also provides the basis for
the right to equality –in as much as every person possess human dignity in equal
measure, everyone must be treated equally and worthy of respect’.

(Excerpts from the Bill of Rights Handbook by Iain Currie and Johan De Waal14

[43] Article 12 of the Universal Declaration of Human Rights stipulates that;

‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence,
nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law
against such interference or attacks’

Article 5 of the African Charter on Human and Peoples’ Rights (the Banjul Charter) is

couched in the same terms.

Decision of Court on issues Nos. 2 & 3.

[44] In keeping with this Court’s duty to accord to the 1st Applicant the protection of the
law, and in the circumstances of this case as analyzed above, I find that by publishing

14
A Juta Publication, 6th ed. at pages 250 - 252
17
 the impugned publications, the Respondent infringed the fundamental rights and
freedoms of the 1st Applicant guaranteed under Articles 24 and 27 of the Constitution.

[45] Respectfully, I reject the argument in rebuttal by Mr. Mutabingwa that the 1st Applicant
was caught committing adultery.

The evidence before this court is that the marriage between the Applicants is a
customary Marriage. The law on customary marriages as it stands today, is that,
that type of marriage may be polygamous. (See sec. 4 (2) of the Customary Marriage
(Registration) Act, Cap). In addition, although that Act, (the Customary Marriage
(Registration) Act) makes provision for the Registration of customary marriages and
the circumstances that would affect its validity, it does not provide for its dissolution
nor what would constitute a matrimonial offence thereunder. There is a lacuna, a
grey area in the law, as to whether adultery is a matrimonial offence in customary
marriages.

[46] Adultery was prescribed as an offence under Sec. 154 of The Penal Code Act, Cap
120, until the Constitutional Court in Law Advocacy for Women in Uganda v Attorney
General15, declared that section null and void. Even then, that section did not apply
to the spirit and polygamous character of customary marriages in Uganda.

[47] By the same token, the Divorce Act Cap 249, which is now also subject to amendment
following the decision in Mifumi (U) Ltd and Others v. Attorney General & Anor16, is
silent or unclear on whether or not adultery is an offence / ground for Divorce in
customary marriages.

I subscribe to the view held by Bossa, J (as she then was) in John Tom Kintu Muwanga
v. Myllious Gafabusa Kintu17, when she stated that it would be wrong to apply the
Divorce Act to a customary Marriage. She reasoned that proceeding under the

15
Constitutional Petitions Nos. 13/05 & 05/06 [2007] UGCC
16
Constitutional Appeal No. 2 of 2014 (UGSC 13 of 2015)
17
HC Divorce Appeal No. 135 of 1997
18
 Divorce Act for spouses who chose to contract a marriage under custom, would be to
superimpose a foreign regime of law upon them.

[48] Justice Bossa’s said view is still valid today, subject to the Constitutional provisions
on equality and dignity of both men and women under Articles 24, 31 (1) and 33 (1)
& (6).

[49] That view held by Bossa, J (as she then was) in the Kintu Muwanga case (supra) is no
different from the view taken by the distinguished scholars of Black’s Law Dictionary18
in which they define adultery and take cognizance that the word ‘adultery’ as they
described it, cannot be interpreted with the same meaning as an arrangement where
one may marry several wives.

[50] For clarity, I will reproduce the definition of Adultery and the relevant notes in that
dictionary:

Adultery is therein described19 as;

‘Voluntary sexual intercourse between a married person and someone other than the person’s
spouse.’...

The relevant notes therein:

‘Returning to the question of adultery, evidently this word cannot be interpreted today in precisely the
meaning it bore in the Old Testament patriarchs. On Old Testament principles one may marry several
wives, even two sisters; and a married man may and should beget children for his dead brother…Such
acts, though evidently not adulterous within the original meaning of the Decalogue, would be regarded
as adulterous by the laws and customs of Western society at the present day…’

Underlining / Emphasis added.

[51] Bringing home this excerpt from Black’s Law Dictionary to the present case, one may
ask; does adultery constitute a matrimonial offence when our law on customary
marriages allows one to marry several wives?...When some of our indigenous customs

18
9th ed. (April 2009) published by Thompson Reuters.
19
At page 60 of that 9th ed.
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 and cultures encourage a man, married under custom, to beget children for his dead
or impotent brother and or to marry sisters from the same family?

[52] Respectfully, I do not therefore subscribe to the other view held by Bossa J (as she
then was) in the Kintu Muwanga Case (supra). She went on to opine that if a person
married under customary law continues to marry more wives under the same type of
marriage, he does not commit adultery but where the other person involved is not
legally married to that person under customary law, the association must be clearly
adulterous.

[53] Rather than that view, I subscribe to the view by the Scholars of Black’s Law Dictionary
that where one can marry several wives, (read or husbands), acts that would be
rendered as adulterous under laws and customs of western / foreign society, are
evidently not adulterous.

[54] Since for now adultery as a matrimonial offence in customary marriages is still a grey
area in our law, it may be safe, in the short run, to leave that question to the tribe and
customs of the parties, and in the mid to long run, to the framers of the law.

[55] That said, since no evidence was adduced in the present case about the rites and
customs under which the Applicants’ married and whether adultery is a matrimonial
offence under that custom, I see no contravention by the 1st Applicant of the law on
adultery as it stands today.

I hasten to add that this position is by no means, a condonation of what may be

rendered as immoral conduct or matrimonial infidelity in other contexts.

[56] For the rights of the family under Article 31 of the Constitution, I am not persuaded
that the Respondent infringed any of the rights enshrined in that Article. To wit; the
right to found a family, equality during and at the dissolution of a marriage and other
rights therein.

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[57] In the Result, issue No. 2 is answered partially in the affirmative while issue No. 3 is
answered in the negative. I hold that by publishing the impugned publications, the
Respondent infringed the 1st Applicant’s fundamental rights and freedoms guaranteed
under Articles 24 and 27 of the Constitution, and that the impugned publications were
NOT justified.

Issue No. 4:

What remedies, if any, are available?

[58] Having concluded as I have on issues Nos. 2 & 3, it follows that only the 1st Applicant
is entitled to redress for infringement of his said rights and freedoms.

The 2nd Applicant and their Children are NOT entitled to any redress.

[59] To this end, I declare and grant the 1st Applicant the following reliefs;

Declarations and Orders of this Court:

1. A Declaration is hereby made that by publishing the impugned publications, the

Respondent infringed on the 1st Applicant’s fundamental human rights and
freedoms of human dignity and privacy of person guaranteed under Articles 24 and
27 of the Constitution.
2. A permanent injunction is hereby issued against the Respondent and its directors,
officers and agents or any person under their supervision and instruction,
prohibiting them from any further publication of the impugned publications.
3. The Respondent shall pay to the 1st Applicant Compensation of Uganda Shillings
Sixty Million Only (UGX. 60,000,000/=) for the infringement of his rights and
freedoms as stated, including inter alia; for the distress, loss of dignity, pain and
humiliation that he suffered as a result of the impugned publications.
4. The Respondent shall pay to the 1st Applicant punitive damages of Uganda Shillings
Fifteen Million (UGX. 15,000,000/=) as a deterrence from future wrongful conduct
and insensitive illegal styles of publishing.
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 5. The awards granted under clauses 3 & 4 above each carry interest at the rate of
10% per annum from the date of this Ruling until the date payment is made in full.
6. The 1st Applicant being the successful party, he shall be paid the costs of this
application by the Respondent.

I so Order,

P. BASAZA - WASSWA

JUDGE

May 29, 2020

Ruling dated, signed and delivered by email on May 29, 2020.

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