Bride price, a common cultural practice in many African countries, acts as a form of validation of customary marriages. In a paper titled Bride Price and Violence Against Women: The Case of Uganda presented at the International Bride Price Conference Kampala earlier in the year, Lady Justice Oguli Oumo described bride price as consisting “a contract where material items, (often cattle and other animals) or money are paid by the groom to the bride’s family in exchange for the bride, her labour and her capacity to produce children”.
The payment of bride price by the prospective groom is therefore a requisite in instances of customary marriage. This was clearly pronounced by the court in the Kenyan case of Amulan Ogwang v Edward Ojok where the ruling was that under customary law, there is no marriage until full bride price is paid. It was decided that a father was entitled to pregnancy compensation because the man who had made his daughter pregnant had not paid full bride price. The same position was taken by the court in Uganda in the case of Nemezio Ayiiya Pet v Sabina Onzia Ayiiya (divorce petition no.8 of 1973) where the holding was to the effect that a man and woman cohabiting can be regarded as husband and wife but until all bride price is paid, there is no valid customary marriage.
It is in light of the foregoing that the case of Mifumi (u) Ltd and 12 others v Attorney General and Kenneth Kakuru (2010) UGCC2 was brought before the Constitutional Court of Uganda. The petition challenged the constitutionality of the customary practice of demand for, and payment of bride price as a condition precedent to marriage, and the demand for, and payment of bride price as a condition precedent to the dissolution of a marriage.
In summary, the petitioners in the case challenged the practice of bride price payment on grounds that (a) it interferes with the free consent of the man and woman intending to marry, (b) it perpetuates conditions of inequality between men and women and (c) it amounts to degrading treatment.
This case is of interest primarily because the practice of the payment of bride price is widely present in Kenya, and also because of the fact that the provisions of the Uganda constitution upon which the case was based are in pari materia with the provisions of our own Constitution.
The petitioners contended that the demand for bride price by parents of the bride as a condition precedent to a valid customary marriage makes the consent of the persons intending to marry contingent upon the demands of a third party, contrary to article 31(3) of the Uganda Constitution which provides that marriage shall be entered into with the free consent of the man and woman intending to marry.
This provision is also present in the Kenya Constitution in article 45(2) which states thus, “every adult has the right to marry a person of the opposite sex, based on the free consent of the parties”. It was argued that bride price is either used to force a woman to enter into marriage against her consent, or to bar a man from entering into a marriage relationship. Additionally, bride price may force a couple to cohabit due to not being able to raise funds sufficient to meet the obligation.
Second, the petitioners submitted that the payment of bride price by men for their wives leads men to treat their wives as mere possessions from whom maximum obedience is extracted, thus perpetuating conditions of inequality as prohibited by article21 21(1) (2) of the Constitution of Uganda which provides that all persons are equal before and under the law.
The equivalent of this provision in the Constitution of Kenya is article 27(1) which states that every person is equal before and under the law and has the right to equal protection and equal benefit of the law, and article 27(3) which provides that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
The third argument was that the demand for bride price from prospective sons in law portrays the woman as an article in a market for sale, which amounts to degrading treatment contrary to article 24 of the Constitution of Uganda, which guarantees that every person shall be treated with dignity. A similar provision is present in our Constitution in article 25. It states thus, “despite any other provision in this Constitution, the following rights shall not be limited- (a) freedom from torture and cruel, inhuman or degrading treatment…”
It was added that the use of bride price leads to social ills, such as fathers forcing their daughters to get married simply to collect bride price, and young girls being removed from school and forced into early marriages.
In deciding the case, the court first made a distinction between the terms ‘dowry’ and ‘bride price’ and cautioned that the two must not be used interchangeably. Accordingly, ‘bride price’ is typically paid by the groom to the bride’s family, while ‘dowry’ is typically paid by the bride’s family to the bride, or to the wedded couple, to help establish their new household.
The learned judges agreed with the petitioners that bride price is generally intended to reflect the perceived value of the girl or young woman. The court also agreed that a potential bride being discussed in terms of any quantity seems to violate the constitutional prohibition against customs that undermine the status of a woman and further, that a bride price refund demand fails to honour a wife’s unique and valuable contributions to a marriage, and that any refund violates a woman’s constitutional right to be an equal co-partner to the man.
Despite these findings however, the court declined to declare the practice of payment of dowry unconstitutional, saying the declaration was not essential, as the aggrieved party would be at liberty to institute criminal proceedings or civil action in a court of competent jurisdiction. The petition was therefore dismissed on those grounds by a majority decision of four to one and is now before the supreme court of Uganda on appeal by the petitioners.
The case highlights the need to rethink the place of bride price in the modern setting. Needless to say, bride price payment was initially a noble African practice but which has gradually become subject to abuse by persons who view it as a way to acquire riches. The commercialization of the practice has in turn resulted in the loss of meaning of bride price as it has degenerated into commodity exchange. In addition to the arguments put forth in the case of Mifumi, it may be added that bride price if not well handled often leads to strife between the families of the couple.
A research by the Centre for Human Rights Advancement (CEHURA) in April 2012 in Bundibugyo, Western Uganda found a number of problems associated with the practice of bride price. The practice leads to the exploitation of women such that bride price enslaves the woman. A clan leader noted, “women lose their dignity, have to do endless hard labour and then failure to produce children becomes a big crime once you have been paid for”.
The research also found that the practice is an economic burden for men. The increasing demand for a higher bride price for more educated girls was noted. Specific reference was made to the commercialization of the bride price process that mainly affects low income men. Consequently, some men are ‘overcharged’ thus leading to financial strain at the start of the marriage.
Starting a marriage while in heavy debt was identified as leading to much conflict between the man and the woman. The perception that a man has been ‘overcharged’ could lead to numerous conflicts with the wife and disruption of the marriage. Women were said to feel unstable in their relationships if bride price had not been paid.
In addition to creating conflict within the marriage, the bride price process was also identified as potentially creating problems within the bride’s family due to absence of presents for all members. As an interviewee remarked, “the bride price may bring misunderstanding between the family members … because not everybody was considered at the time of the sharing of the bride price”.
Among the suggestions given is that there should be mutual understanding between the parties during the bargaining process. Young men suggested changes in the amounts of bride price. One such suggestion was that the government must be approached to “put laws that will help reduce the burden of bride price to at least 6 goats and not 12 goats”.
On the other hand, advocates of the practice insist that bride price payment is necessary for the groom to show appreciation to the bride’s family, hence the need to pay. It is also said that bride price helps separate serious suitors from the jokers. To its proponents, bride price does not amount to ‘selling’ the bride.
An interesting remark made by Justice Mpagi-Bahigeine in the case of Mifumi is that ‘bride price’ is in fact a misnomer coined by colonialists who did not appreciate the meaning and significance of certain cultural rites and ceremonies.
Whichever way one may perceive it, it is time to reevaluate the utility of bride price in modern African societies.
Email your news TIPS to Editor@nairobilawmonthly.com, and to advertise with us, call +254715061658 anytime of the day
