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Jurisprudence of Equality Program Decisions

Kenya: J.A.O. v. Homepark Caterers Ltd. et al., Civil Case No. 38 of 2003, High Court of Kenya at Nairobi, Sept. 2004.

Plaintiff J.A.O. filed suit against her former employer, arguing that the company unlawfully terminated her employment based on her HIV status, in violation of her constitutional right to be free from discrimination. She also sued her doctor and hospital, claiming that they violated her constitutional rights to privacy and confidentiality by testing her for HIV without her consent and disclosing her status to her employer. In addition, the plaintiff claimed that the defendant doctor breached his professional and statutory duty to counsel her and disclose her HIV status to her. The defendants filed a chamber summons asking the court to dismiss the complaint on the ground that it failed to state a reasonable cause of action.

Acting Judge M. G. Mugo held that the complaint stated a cause of action that was reasonable in light of "the nature of th[e] case, the universality of the HIV/AIDS pandemic, and the development of the human rights jurisprudence together with the ongoing attempts at the harmonization of the relevant conventions with domestic law." Therefore, Judge Mugo dismissed the chamber summons, with costs to the respondent.

Kenya: In re Wachokire, Succession Cause No. 192 of 2000, Chief Magistrate's Court at Thika, August 19, 2002.

Jane Watiri petitioned the court to award her one-half of a parcel of land that belonged to her deceased father on which she lived with her four children. Her brother objected, arguing that he had cultivated a larger portion of the land during his father's lifetime than his sister and therefore was entitled to that larger portion.

Senior Principal Magistrate H. A. Omondi found that under Kikuyu customary law, an unmarried woman like Watiri lacked equal inheritance rights because of the expectation that she would get married. Magistrate Omondi held that this customary provision discriminated against women in violation of Section 82(1) of the Kenyan Constitution, which prohibits discrimination on the basis of sex. It also violated Article 18(3) of the Banjul Charter and Article 15(1)-(3) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which provide for legal equality between men and women. Consequently, Magistrate Omondi awarded Watiri and her brother each an equal share of their father's property.

Kenya: Okeyo v. Ogwayi, Civil Suit No. 66 of 2001, Senior Resident Magistrate's Court at Homa Bay, June 13, 2002.

Following the death of her estranged husband, Plaintiff Janet Atieno Okeyo sought a permanent injunction against her father-in-law Jacob Ogwayi, enjoining him from forcing her to return with her two children to her marital home. Okeyo and her deceased husband, Joanes Onyago, the defendant's son, had separated one year prior to his death. Several years after Onyago's death, his father had Okeyo arrested on the ground that because he had paid dowry for Okeyo, she was his daughter-in-law and should be living with her children in Onyago's marital home. He also claimed that a relative of the deceased had inherited Okeyo.

Resident Magistrate J. A. Wanjala held that forcing Okeyo to return to the marital home would violate her statutory rights of free association and movement. Moreover, as Okeyo did not herself choose to be inherited by a relative of the deceased, there was no proper marriage. Any customary law requiring her return was repugnant to the written law, and under the Judicature Act, Sec. 3(2), the written law prevails. Resident Magistrate Wanjala further found that the age of the children and the fact that they had been living with their mother dictated that they remain in the custody of their mother. The court enjoined the defendant from interfering with the plaintiff and forcing her back to the marital home.

Tanzania: Chilla v. Chilla, Civil Appeal No. 188 of 2000, High Court of Tanzania at Dar Es Salaam, Jan. 6, 2004.

Ivona Chilla, sister of the deceased, filed suit objecting to the appointment of Demetria Chilla, the decedent's wife, as administrator of the decedent's estate. She further argued that she should have custody over the decedent's son because his mother was a widow and would be dependent on relatives.

Judge N. Kimaro rejected the appellant's custody claim, holding that under the welfare of the child embodied in Article 3 of the Convention of the Rights of the Child (CRC), the respondent was the best person to have custody of the boy as she was his mother and had cared for him since his birth. She held that the appellant's argument that the respondent wife had no right to serve as administrator because she was not chosen to do so by her husband's clan was contrary to the equality provisions of Articles 13, 19, and 26 of the Tanzanian Constitution and Articles 2 and 16 of CEDAW. In addition, Judge Kimaro noted that the trial magistrate's gratuitous finding that only male children can inherit was both irrelevant and contrary to the Tanzanian Constitution, which bars gender discrimination in all aspects. She dismissed the appeal with costs.

Tanzania: Juma v. Kifulefule, Civil Appeal No. 247 of 2001, High Court of Tanzania at Dar Es Salaam, Jan. 6, 2004.

Appellant husband challenged the trial court's determination that his physical abuse of respondent wife was the source of the dissolution of their marriage. Judge N. Kimaro rejected the appellant's characterization of the dispute as a normal marital fight and upheld the decision of the trial court. She found that the husband's treatment of his wife constituted gender-based violence as defined by the Declaration on the Elimination of Violence Against Women (DEVAW). Judge Kimaro explained that domestic violence violates the right to equality and to life under Articles 12(1) and 14 of the Constitution of Tanzania, as well as the Article 5 of the Universal Declaration of Human Rights (UDHR), which is embodied in the Constitution and proscribes cruel, inhuman, and degrading treatment and punishment. The court also upheld the trial court's division of the parties' marital property, which followed the principle of equal protection under the law as required by Article 13(1) of the Tanzanian Constitution.

Tanzania: Marandu v. Marandu, Civil Case No. 33 of 2003, District Court of Moshi at Moshi, Oct. 10, 2003.
 This case involved a dispute between the mother and other relatives of the deceased and his wife over which party had the right to bury the body of the deceased. Resident Magistrate I. P. Kitusi awarded burial rights to the defendant wife, holding that the evidence demonstrated that the decedent told his wife and children that he wished to be buried at the place of his marital home and that he was a devout Christian and no longer bound by customary law that required a first born son to be buried on ancestral land. In rejecting the reasoning of a 1986 Kenyan case, the magistrate explained that the notion that "a woman should sit by and wait for men to decide on what do to with her husband's body may have been true some years ago but it cannot be true today, . . . the laws of this country have changed and a woman no longer sits by." He explained that while he had not found any previously decided cases on the right of a woman to bury her husband, there were several controlling precedents on the right to gender equality. These cases had clearly established the applicability of international human rights principles in Tanzania through Article 9(f) of the Tanzanian Constitution. Magistrate Kitusi further explained that customary laws that discriminate between men and women violate principles of gender equality, privacy, human dignity protected by the Constitution and international law instruments ratified by Tanzania.

Tanzania: Mtefu v. Mtefu, Civil Appeal No. 214 of 2000, High Court of Tanzania at Dar Es Salaam, Jan. 20, 2003.

Appellant husband argued that the trial court erred in granting the parties a divorce on grounds of his adultery and cruelty and in ordering the equal division of the marital property. Judge N. Kimaro upheld the decision of the trial court. She rejected the appellant's argument that the respondent had consented to the adulterous affair and found that the appellant was cruel in his adultery and in having his wife arrested when she protested the affair. Judge Kimaro also rejected the appellant's claim that the respondent's housework was a purely conjugal obligation that did not contribute to the marital property, explaining that such arguments are a "clear reflection of the violence and discrimination which a woman has lived with in the society for years" and that domestic services require recognition and compensation. She stated that awarding all of the marital property to the appellant husband would be contrary to the equal protection provision of Article 13(1) of the Tanzanian Constitution. Thus, Judge Kimaro held that the trial court's equal division of marital property was proper and consistent with the principles of nondiscrimination and human dignity found in Article 9(f) and 13(1) of the Constitution of Tanzania, Article 15 of CEDAW, and the UDHR.

Tanzania: Alli v. Elphas, Civil Appeal No. 21 of 2002, District Court of Mwanga at Mwanga, December 21, 2002.

Appellee Lukio Elphas sought to evict appellants Butuli Alli and Saidi Hassan from their residence on a plot of land that originally belonged to the estate of Alli's first husband. He claimed in part that as a widow, Alli, had no right to occupy land belonging to her late husband. The primary court ordered the plaintiffs evicted from their home.

On appeal, Magistrate S.O. Msigiti reversed the lower court's decision, holding that the appellants were entitled to the plot of land and residence in issue. The court held the that the eviction rested on the discriminatory premise that women have no right to own property and do not have a full range of choices in marriage. Magistrate Msigiti stated that: "the rights of women in owning property and elimination of discrimination against women is not a Tanzania issue alone. It is an issue touching the whole international community." The court held that the appellants' eviction violated principles of equality between the sexes as to marriage, residence, and marital benefits found in Articles 13(1) and 16(1) of the UDHR, the Law of Marriage Act of 1971, and the Constitution of Tanzania. Magistrate Msigiti further questioned the standing of respondent Elphas to sue for the eviction of the appellants, explaining that he had not shown that he was the administrator of the estate and noting that "it is not proper for every relative to appear in court for a deceased."

Tanzania: Ndossi v. Ndossi, Civil Appeal No. 13 of 2001, High Court of Tanzania at Dar Es Salaam, Feb. 13, 2002.

The appellant was appointed the administrator of the estate of his deceased brother by the primary trial court. The widow of the deceased successfully challenged that appointment in the appellate district court. The brother of the deceased appealed, seeking restoration of the primary court decision.

Judge E. Munuo, as she then was, held that the widow was entitled to administer the estate on behalf of her children under the Constitution of Tanzania, which provides that "every person is entitled to own property and has a right to the protection of that property held in accordance of the law." She further held that the Article 9(a) and (f) of the Constitution recognizes human rights by requiring "that human dignity is preserved and upheld in accordance with the spirit of the Universal Declaration of Human Rights." This clause, Judge Munuo explained, generally domesticated human rights instruments ratified by Tanzania, including the anti-discrimination principles of CEDAW, Article 2(b) & (f), and the best interest of the child principle found in Article 3 of the CRC. She found that these provisions protect widows and children from "uncouth relatives prying and/or attempting to alienate the estate of deceased fathers and mothers under the shield of custom."

Tanzania: Njobeka v. Mkorogoro, P.C. Civil Appeal NA. 6 of 2001, High Court of Tanzania at Dar Es Salaam, July 13, 2001.

Respondent husband issued a talak to appellant wife, divorcing her under Islamic law. BAKWATA, the National Muslim Council of Tanzania, confirmed the talak and advised the parties that respondent husband should pay his wife Tsh 500,000 as a parting gift. When the respondent failed to pay, the appellant filed civil matrimonial proceedings in the primary court. The primary court issued a decree of divorce and ordered the respondent to pay Tsh 500,000, on the ground that this had been the agreement between the parties. On appeal, the appellant argued that the primary court's award was inadequate because it failed to take into account both parties' contributions to the marital property.

Judge N. Kimaro held that the primary court erred in adopting the relief recommended by BAKWATA. She noted that BAKWATA is a reconciliation council; once reconciliation fails, its authority ends. Judge Kimaro found that the primary court erred by failing to provide the appellant an effective remedy in accordance with the principle of equal protection of the law guaranteed by Article 13(1) of the Tanzanian Constitution. Moreover, the primary court's decision was contrary to Article 2(a) of CEDAW, which requires state parties to embody the principle of equality before the law in their national Constitutions and ensure the practical realization of that principle. Judge Kimaro noted that the Tanzania Constitution expressly recognizes the UDHR, which is a source of all other international treaties dealing with human rights. She therefore set aside the lower court's order and substituted it with an order that the appellant be awarded one of the two houses the couple had jointly acquired as her share of the matrimonial assets.

Tanzania: Jonathan v. Republic, Criminal Appeal No. 53 of 2001, High Court of Tanzania at Moshi, Sept. 21, 2001.

Appellant Jonathan, with 3 companions armed with sticks and machetes, forcibly seized a 23-year-old woman from her home, took her to his house, and raped her. The appellant claimed that his conduct had been permissible as a traditional marriage under customary norms. Judge E. Munuo, as she then was, found that the sexual encounter was violent and nonconsensual and held that without volition, there could be no marriage between the parties under Tanzania's Law of Marriage Act, which provides that "[m]arriage means the voluntary union of a man and a woman." She held that the complainant was further protected by Article 4 of the DEVAW, which calls upon States to reject custom, tradition, or religion as excuses to avoid their obligation to protect and offer adequate relief to women victims of violence; Article 14 of the UDHR, which requires volition and consent for a valid marriage; Article 16(b) of CEDAW, which guarantees the right to equality in entering into marriage and freely choosing one's spouse with free and full consent; and Article 23 of the ICCPR, which guarantees the same. The court thus held that the appellant was correctly convicted of rape for the complainant "never consented to the appellant carnally knowing her nor marrying her under the obnoxious customary practice of grabbing women, locking them up, and sexually assaulting them in the name of Chagga customary marriage."

Tanzania: Mohamed v. Makamo, Civil Appeal No. 45 of 2001, High Court of Tanzania at Dar Es Salaam, June 8, 2001.

Appellant Guliya Mohamed appealed the decision of the district court awarding the appellant wife 5 percent of the marital property and the husband 95 percent upon their divorce. Judge N. Kimaro found that the respondent had introduced no evidence of his own contribution to the property. She found that "With greatest respect to the trial magistrate the decision is discriminatory and a reflection of stereotyped concepts of the roles of man and woman. The appellant was given 5 percent division because she is a woman and women are taken to be inferior in all respects to men." This decision, Judge Kimaro explained, was contrary to Section 114 of the Law of Marriage Act and Article 13(1) of the Constitution of Tanzania, which guarantees equal protection of the law and which is a reflection of Article 7 of the UDHR and Article 15 of CEDAW. Consequently, Judge Kimaro ruled that appellant wife should be awarded 50 percent of the assets.

Uganda: Uganda v. Hamidu et al., Criminal Session Case of 2002, High Court of Uganda at Masaka, Feb. 9, 2004.

Defendant Yiga Hamidu was indicted on charges that he had hired two men to abduct a woman in his village and had subsequently raped her. The defendant denied the charges, raising the defense of mistake of fact or honest belief under section 9(1) of the Penal Code. He argued that he had honestly believed that the complainant was his wife because he had paid a dowry to her parents and a customary marriage had been sealed. He further submitted that under Ugandan laws, a husband cannot rape his own wife. The complainant, Nassuna Rehema, argued that she had broken her engagement to Hamidu when she learned that his prior wife had died, apparently of AIDS, and had stipulated that they should each be tested for HIV before marrying. She argued that she had not consented to sexual intercourse but that the defendant had locked her in his room and forced himself on her while her two abductors held her down on the floor.

Judge V. F. Kibuuka found no evidence that a marriage had taken place in accordance with the parties' Islamic faith. Moreover, the evidence demonstrated that the complainant never consented to sexual intercourse. Judge Kibuuka stated that even if the couple had been customarily married, the facts and circumstances of the case would render the defendant guilty of rape. He noted that the provision of the penal code that deals with rape does not make an exception for married persons, and observed that some other jurisdictions have expressly constituted the offense of marital rape to counter the out-dated presumption of consent during marriage. The judge stated that the existence of a valid marriage or honest belief of a valid marriage is no longer a good defense of rape in Uganda in light of the Constitution of 1995, which provides for equal rights in marriage and full and equal dignity of the person. These provisions, he explained, exclude the operation of section 9(1) of the Penal Code to the situation in this case. Finding that the complainant was treated as a "mere sexual instrumentality" and that her "human dignity was trumpled upon significantly," Judge Kibuuka rejected the defendant's defense and convicted him of rape.

Uganda: Uganda v. Musoke, Criminal Session Case No. 94 of 2001, High Court of Uganda at Mukono, June 19, 2001.

Defendant Magidu Musoke was indicted on charges of defilement, having unlawful sexual intercourse with a minor. Judge Yorokamu Bamwine held that the prosecution proved beyond a reasonable doubt that the accused victim was a minor, had sex with a man, and that the man was defendant Musoke. In finding that the defendant was the defiler, the judge relied on the testimony of the alleged victim and the testimony of a night watchman who heard the victim cry out and then found her holding the hand of the accused whose trousers were put on inside out, condoms and torn knickers at the scene. The judge noted that while corroboration of a complainant's testimony is necessary to prove defilement, circumstantial evidence implicating the accused may be sufficient to provide the required corroboration.

Uganda: Lub v. Lub, Divorce Case No. 47 of 1997, High Court of Uganda at Kampala, Apr. 28, 2000.

Petitioner Monica Lub filed for divorce from Respondent Dirk Peter Lub, on grounds of adultery, cruelty, and desertion. The respondent did not contest the petition. Explaining that adultery may be inferred from circumstantial evidence, Judge S. Bossa credited the petitioner's testimony that the respondent had confessed to her that he had committed adultery with numerous women. She also found that the petitioner had subsequently encountered the respondent in Ethiopia living with another woman, at which point the respondent requested a divorce and put the petitioner up in a hotel for the duration of her stay. Finally, she acknowledged a letter from the respondent introduced into evidence which stated that the respondent had lost interest in the petition and wanted a divorce. Judge Bossa found sufficient evidence to prove each of the charges and granted the petition for divorce.

Uganda: Bakojja v. Bakojja, Divorce Cause No. 11 of 1998, High Court of Uganda at Kampala, Feb. 25, 2000.

The petitioner sought the payment of alimony from her husband upon their divorce. Judge S. Bossa cited the public policy rational for alimony, as articulated by the Supreme Court of Louisiana, which posits that alimony is a way that the legislature distributes the societal obligation to support those in need. She also cited specific provisions of the Louisiana Civil Code, art. 112, which discusses alimony after divorce, noting that while those provisions are foreign and non-binding on the Ugandan courts, they were of universal application and applicable to the case before her. Judge Bossa found that the petitioner was entitled to alimony that would support her at a standard comparable with that of her position during marriage and not significantly less than her husband's lifestyle. Finding that the respondent spent 70 percent of his income to support his family, the judge ordered him contribute 10 percent of his regular income towards the petitioner as alimony, leaving 15 percent for his personal use and savings.

Uganda: Owagage v. Mudhma, Civ. Suit No. 990 of 1998, High Court of Uganda at Kampala, Nov. 24, 2000.

Plaintiff Christine Owagage was the mistress of decedent Emmanuel Owagage and the father of five of his eighteen children. When the decedent died, he left a will bequeathing a piece of property to the plaintiff. Defendant Michael Mudhma, the decedent's first son by his legal wife, obtained a caveat blocking the plaintiff from obtaining letters of administration to the decedent's estate. The plaintiff sued for removal of the caveat. The defendant argued that the plaintiff had no right to administer the estate because she was not a beneficiary. He counterclaimed that the decedent's will was invalid or, in the alternative, that the land in question could not be given away as it was ancestral land that belonged to all of the beneficiaries.

Judge S. Bossa found that the will was valid. She held that the decedent lawfully acquired his property from his late father and had the right to bequeath it to whomever he wished. The judge rejected the claim of two clan members that the decedent was simply a trustee of the land, finding that the real reason for their claim was that they did not want the land to pass outside of the clan. This, she explained, was contrary to Article 21 of the Ugandan Constitution, which provides that all persons are entitled to equal protection of the law and prohibits discrimination on account of any of a number of grounds. Finally, Judge Bossa held that neither party was suited to acquire letters of administration because neither was positioned to look after the interests of all of the beneficiaries. She appointed the Administrator General as the appropriate neutral person to look after the estate.

Uganda v. Matovu, Criminal Session Case No. 146 of 2001, High Court of Uganda at Kampala, Oct. 21, 2002.

Defendant Peter Matovu was indicted on charges of defilement. Judge E. S. Lugayizi declined to apply the common law rule that where a victim alleges that the accused committed a sexual offense against her, the court must warn itself that it is dangerous to act upon the uncorroborated evidence of the victim and before so acting must satisfy itself that the victim is a truthful witness. He explained that the rule discriminated against women, who were the most frequent victims of sexual offenses. It was therefore inconsistent with Uganda's Constitution and international law obligations, particularly Article 1 of CEDAW. He noted that "under Article 21 of the Constitution that proclaims equality of all persons under the law, equal protection of the law, and prohibition against discrimination on the ground of sex, Uganda enacted the heart of the above international instruments in one stroke [and t]herefore Uganda has the obligation to give effect to the contents of those international instruments." Thus, the judge held that the discriminatory rule was unconstitutional and therefore null and void. After considering all of the evidence, the court concluded that the prosecution proved beyond a reasonable doubt that the accused was guilty of defilement. In sentencing the defendant, Judge Lugayizi noted that the offense of defilement was a very serious offense, which exposed young girls to the possibility of being infected with STDs and especially AIDS. However, he declined to impose the maximum capital sentence in light of the defendant's youth and the fact that he was a first offender, and sentenced him to 10 years in prison. ​