Bride price is an amount of money, property, or other form of wealth paid to the parents of a woman for the right to marry their daughter. It is the payment made in ‘exchange’ for the bride’s family’s loss of her labor and fertility within her kinship group. It may also be understood as a gift from the groom to his new bride’s family. In this sense, it is a substantial gesture of goodwill in the forging of the new unity of the lineages. The practice of bride price may include bride service, the service rendered to the bride’s family by the bridegroom as the bride price or part thereof. A famous biblical example of bride service occurs in the Book of Genesis, where Jacob had to labor for Laban (his father-in-law) for seven years to win Leah and another seven years to win Rachel.
Bride-price has been a cherished custom among African societies since time immemorial. However, it poses a question of whether a token of appreciation, in this case, the bride price, entails the element of a sale. Bride price operating in a money economy has come to acquire the qualities of a sale, it is now the price of a woman. This undermines the status of women and in a situation like this, the law offers a solution – “without prejudice…women shall have the right to affirmative action to redress the imbalances created by history, tradition or custom.” Considering the above definition of bride price, in modern Uganda where constitutionalism is pertinent, a dilemma of some sort is created when archaic customs that cannot fit into the context of modern times are carried on under the umbrella of customary law.
In Mifumi (U) Limited and 12 others v Attorney General (Constitutional Petition No.12 of 2007) 2010, the petitioners (a non-government organization and private individuals) petitioned the constitutional court challenging the constitutionality of the customary practice of demand for and payment of bride price, alleging that the pride price as a condition precedent to a marriage, and a demand for and payment of, bride price as a condition precedent to dissolution of marriage should declared unconstitutional arguing that it infringes on several constitutional provisions. They petitioned the court to issue the following declarations:
- a) That the demand for bride price by parents of the bride from prospective sons-in-law as a condition precedent to a valid customary marriage is contrary to Article 31 (3) of the Constitution that provides that marriage shall be entered into with the free consent of the man and a woman intending to marry, because the demand for bride price makes the consent of the persons who intend to marry contingent upon the demands of a third party;
- b) That the payment of bride price by men for their wives as demanded by custom from several tribes in Uganda leads men to treat their women as mere possessions from whom maximum obedience is extracted, thus perpetuating conditions of inequality between men and women, prohibited by Article 21(1), (2) Constitution of Uganda, which provides that all persons are equal before and under the law;
- c) That the demand for a refund of the bride price as a condition precedent to the dissolution of a customary marriage is contrary to the provisions of Article 31(1) of the Constitution of Uganda in as far as it interferes with the exercise of the free consent of the parties to a marriage; and
- d) That the demand for bride price by parents of the bride from prospective sons-in-law in as much as it portrays the woman as an article in a market for sale amounts to degrading treatment, prohibited by the Constitution of Uganda in Article 24, which guarantees that every person shall be treated with dignity.
The demand for a bride price by the parents of the bride from prospective sons-in-law as a condition precedent to a valid customary marriage perpetuates conditions of inequality between the husband and wife. Article 31 of the Constitution mandates that “women shall have the right to equal treatment with men…” Bride price therefore, contravenes Article 21, which provides for equality and freedom from discrimination, “All persons are equal before and under the law in all spheres of…economic, social and cultural life and in every other respect shall enjoy the equal protection of the law.” The practice of bride price “leads men to treat their women as mere possessions from whom maximum obedience is extracted…” Under such a custom, the wife is not an equal in the realm of marriage vis-à-vis the husband, but rather she is simply a piece of his property.
The condition for the bride price abuses one’s Constitutional right to freely consent to enter into marriage. The demand for and payment of bride price and dowry as a condition precedent to a customary marriage violates Article 31(3) of the Constitution, which states that: “marriage shall be entered into with the free consent of the man and woman intending to marry.” Additionally, a bride price or dowry may force a couple to cohabit due to not being able to raise funds sufficient to meet the obligation. The Constitution provides that laws, cultures, customs, or traditions which are against the dignity, welfare, or interest of women or which undermine their status, are prohibited by this Constitution (Article 33[6]). Additionally, Article 24 provides for respect for human dignity and protection from inhuman treatment.
Article 24 provides that accordingly, no person shall be subjected to “cruel, inhuman or degrading treatment or punishment.” Both the demand for a bride price and the demand for a refund of the bride price, amount to the buying and selling of a bride as an item for sale in a market. Such haggling and pricing of young girls and women like commodities is an affront to human dignity. The use of bride price leads to social ills such as fathers forcing daughters to get married simply to collect a bride price and young women being removed from schools and forced into early marriages. Uneducated women may even fetch a higher bride price, or dowry, due to the assumption that women in a school setting are less likely to be undefiled.
However, bride price means different things in different cultures of Uganda such that the Constitutional Court cannot make a uniform interpretation of such a practice. A declaration of bride price as per se unconstitutional would neglect the numerous forms of bride price. For example, in Kinyankore customary marriages, frequently the bride price, or (“enjugano”), takes the form of a gift from the groom to the bride. Moreover, such a gift is reciprocated from the bride to the groom (an “emihingiro”). Since payment of bride price is a customary practice the Constitutional Court cannot decide the constitutionality of the alleged customary law of “bride price” before it is found to apply to a specific community.
Article 37 gives the right to “enjoy, practice, maintain and promote any culture, cultural institution and tradition in community with others.” The requirement to pay dowry or bride price does not contravene the Constitution because the practice of bride price is intended to show appreciation to a woman’s parents for taking care of the woman. Moreover, if such a practice does lead to isolated cases of men treating their wives as mere property, such a perversion of the purpose of bride price does not negate the noble aims of the practice, let alone render the custom unconstitutional. Those men and women who appreciate the positive goals of a bride price agreement cannot be denied their constitutional right to enter into such arrangements. Bride price being declared per se unconstitutional would thus deny a man and a woman one legitimate way to get married, which would contravene Article 33(1), which is a violation of the constitutional right to marry and begin a family.
The requirement to pay a bride price to the parents of the bride and the requirement for its refund at the dissolution of marriage does not contravene Article 31(1), (3). The law permits and recognizes various types of marriages which are a reasonable alternative to customary marriage. As far as parties intending to marry are adults who choose the option of undertaking a customary marriage fully knowing that it imposes these customary requirements, and do not undertake any other types of marriage which do not impose these customary requirements, they do consent to the requirement for bride price and the refund thereof. As such, the said customs or practices do not interfere with the exercise of the free consent of the parties to the marriage as alleged.
In numerous instances, a bride price agreement may be entered into with joy by two parties seeking the felicities of a marriage relationship. Whereas bride price may lead to social ills such as domestic abuse, such instances occur as a matter of course or are definitively linked to a bride price arrangement. In any case, there are varied and numerous causes of spousal abuse that cannot be linked with certainty to bride price, as such bride price cannot per se be deemed unconstitutional on such a ground. It may be true that in some cases bride price plays a factor in domestic abuse and women being treated as inferiors but that is no justification to make a blanket prohibition of the practice of bride price.
Bride price encompasses two scenarios. First, the parents of a potential bride may require a bride price from their potential son-in-law as a condition precedent to their lawful customary marriage. Secondly, in the event of a valid dissolution of marriage, the husband may demand a refund of the bride price. There are significant rights and protections that the Constitution accords to women (Article 31(1), (3) (rights to freely enter into marriage); and Article 33 (rights of women to equality with men). The constitutional provisions were intended to correct historical imbalances and an unequal playing field as between men and women (Article 33(6)).
The cultural practice of bride price, the payment of a sum of money or property by the prospective son-in-law to the parents of the prospective bride as a condition precedent to lawful customary marriage, is not barred by the Constitution. It is not per se unconstitutional. The Constitution does not prohibit a voluntary, mutual agreement between a bride and a groom to enter into the bride price arrangement. A man and a woman have the constitutional right to choose the bride price option as the way they wish to get married.
That notwithstanding, in the instance where one or both of the man and woman wishing to get married is given no other alternative to customary marriage and a bride price agreement, such an arrangement contravenes one’s constitutional right to freely and voluntarily enter into a marriage relationship (Articles 20, 31(3)) “Marriage shall be entered into with the free consent of the man and woman intending to marry.” A man should not be prevented from marrying the woman of his choice due to not being able to meet a bride price demand, nor be compelled to enter into a bride price marriage. A man and a woman’s constitutional right to enter into a marriage relationship (Article 31(1)) should not be made contingent upon the demands of a third party, the parents of the bride, for the payment of a bride price or dowry. Any payment of a bride price or dowry must be conditioned upon the voluntary consent of the two parties to the marriage.
The customary practice of the husband demanding a refund of the bride price in the event of dissolution of the marriage demeans and undermines the dignity of a woman and violates Article 33(6) of the Constitution. The demand for a refund of bride price violates a woman’s entitlement to equal rights with the man in marriage, during marriage, and at its dissolution.
Also, the demand for a refund of the bride price fails to honor the wife’s valuable contributions to the marriage. A woman’s contributions in a marriage cannot be equated to any sum of money or property, and any refund violates a woman’s constitutional right to be an equal co-partner to the man. However, the Constitution itself, under Article 50 and others can adequately take care of the grievances arising thereof. The aggrieved party would be at liberty to institute criminal proceedings or a civil action in a court of competent jurisdiction under the relevant law