Nicholas Opio & Ors v Attorney General & Anor

Constitutional Petition No. 23 of 2020

Constitutional Court of Uganda at Kampala

Coram: Justice Egonda-Ntende, Lady Justice Hellen Obura, Lady Justice Eve Luswata, Justice Kazibwe Kawumi, Justice Mugenyi.

Judgement Date: 18^th August, 2025

Parties Involved

The Petitioners are internationally renowned and years-experienced human rights and constitutional law advocates who sought to bring forward a petition to the Constitutional Court of Uganda to render sections of the Divorce Act unconstitutional as well as contradicting basic facets of human rights principles. The case was brought against the Government of Uganda, whose representative was the Office of the Attorney General and a non-governmental organization whose work involves the impact of divorce on children. The petitioners were joined by two amici curiae that is Association of Women Lawyers – Uganda and Initiative for Strategic Litigation in Africa.

Background and Facts

The Petitioners — Nicholas Opio (human rights lawyer), Innocent Ngobi, Isaac Ssali Mugerwa, Dr. Busingye Kabumba (constitutional law don and lecturer at Makerere University, Kampala), and Stella Nakagiri — brought a constitutional petition under Article 137 of the 1995 Constitution. They challenged several provisions of the Divorce Act, Cap. 249 as being inconsistent with the 1995 Constitution. Two of the petitioners highlighted traumatic personal experiences with divorces and preferred that they had been concluded without the fanfare that the Act creates. Specifically, they attacked Sections 4, 5, 6, 7, 8, 15, 16, 18, 30, 33, and 38. Their central argument: the impugned provisions violated constitutional guarantees of free consent in marriage, equality before the law, privacy, freedom from inhuman treatment, and the right to a fair and speedy hearing which are enshrined in the Bill of Rights in the 1995 Constitution of Uganda. Respondents: (1) Attorney General (representing the State) and (2) New Hope Uganda, a children’s NGO concerned with the impact of divorce on family life. Two amici curiae joined on the side of the petitioners: Association of Women Lawyers – Uganda and Initiative for Strategic Litigation in Africa (ISLA).

Issues for Determination

The following were the issues agreed upon by the parties for determination before the Court;

1. Whether the petition raised questions for constitutional interpretation.
2. Whether Sections 4, 5, 6, 7, 8, 15, 16, 18, 30, 33, and 38 of the Divorce Act were inconsistent with or contravened the Constitution of Uganda.
3. Whether the Petitioners were entitled to the reliefs sought.

Petitioners’ Submissions

The petitioners started their argument by quoting Article 31 of the Constitution that marriage is consensual; when one spouse withdraws consent, courts should record a decree nisi without requiring proof of “matrimonial offences” like adultery, cruelty, or desertion. They averred that forcing spouses to stay married violates Article 31(3). The petitioners pointed out that open court proceedings force litigants to relive traumatic events publicly, amounting to intrusion into private life in clear breach of Article 27 of the Constitution that guarantees privacy. They also averred that cross-examination and the fault-based procedure subject spouses to humiliation and psychological torture which in and of itself is a form of inhuman and degrading treatment to have the spouses air their dirty laundry in public, whose dirty laundry becomes court record accessible for the public. They alleged that this was in breach of Articles 24 and 44. That sections 15, 16, and 18 protect only wives during judicial separation, denying similar rights to husbands in clear breach of the concept of equality in Article 21. Fair Hearing & Speedy Trial (Arts. 28 & 126): That lengthy trial-like procedures delay justice, prolong suffering, and often weaponize children in custody battles in regards to proving matrimonial offences, yet Articles 28 and 126 call for a quick resolution of such matters, upholding the best interests of a child principle along the way. The petitioners also did a comparative take using UK’s Divorce, Dissolution and Separation Act 2020, South Africa, Egypt, and Brazil, all recognizing irretrievable breakdown of marriage as sole ground for divorce.

Respondent No. 1 (Attorney General)’s Submissions

The State Attorney stated that the petition was incompetent and raised no question for constitutional interpretation. Courts had previously addressed discriminatory provisions in Uganda Association of Women Lawyers (FIDA) v AG (2004). Marriage is a creature of law, its dissolution must follow procedures, and regulation is justifiable under Article 43 (limitations in a free and democratic society). The petition was a disguised attempt to introduce a “no-fault divorce” regime without parliamentary approval. The Attorney also stated, quite poetically, that the door out of marriage is not closed, neither is it open. That there is a doorkeeper to whom one must explain why you want to leave and if the doorkeeper is satisfied, the door is completely opened. He accused the petitioners of wishing to remove the doorkeeper or in this allusion, the laws that protect the institution.

Respondent No. 2 (New Hope Uganda)’s Submissions

The second respondent stated that divorce destabilizes families and negatively affects children, especially girls. The petitioners sought to liberalize divorce and make marriage casual (“walk in, walk out”), like a high school relationship, not the sacred institution it has historically, culturally and religiously been. Family law reform must be legislative, not judicial; Parliament had been debating reforms through the Marriage and Divorce Bill (2009, 2017). The affidavits of petitioners were based on personal experiences, not national consensus, and the opinions of a stark few should not be the determinant of the institution as a whole.

Amici Curiae Submissions (FIDA-Uganda & ISLA)

The amici curiae supported the Petitioners, arguing that fault-based divorce is outdated, discriminatory, and inconsistent with evolving international human rights norms. They urged the court to align Ugandan divorce law with constitutional principles of consent, equality, dignity, and access to justice, drawing lessons from other jurisdictions

Court’s Analysis & Reasoning

The court drew its mind to the issues in the following ways;

1. Issue 1: Whether the petition raised questions for constitutional interpretation.

The Court held that the petition challenged specific provisions of the Divorce Act as inconsistent with the Constitution (Articles 20, 21, 24, 27, 28, 31, 43, 44, 45, 126, 128). This clearly required constitutional interpretation under Article 137(3). The court’s reasoning was that it is not enough merely to allege violation; petitioners must show on the face of the petition that interpretation of the Constitution is required and the affidavits and submissions raised prima facie inconsistencies between the Divorce Act and constitutional rights. Therefore, the petition was properly before the Constitutional Court. The 1^st Issue was resolved in favour of the petitioners.

Issue 2: Whether Sections 4, 5, 6, 7, 8, 15, 16, 18, 30, 33, and 38 of the Divorce Act were inconsistent with or contravened the Constitution of Uganda.

In handling this issue, the Court addressed it in four broad clusters, each doing with the alleged constitutional contraventions.

(a) Freedom of consent in marriage (Art. 31(3))

The Court found that sections 4 & 5 (grounds for divorce; naming co-respondents) were unconstitutional in tandem with sections 6, 7, & 8 (connivance, condonation, collusion) as corollaries of section 4. The Judges’ reasoning was that marriage must be entered into and sustained by free consent. If it is withdrawn by one spouse, the marriage cannot continue. The Court found that the grounds in the Act (adultery, cruelty, desertion, etc.) are relics of colonial law and inconsistent with Article 31. It also found that denying divorce despite withdrawal of consent compels parties into a union without consent, violating the Constitution.

(b) Equality before the law (Arts. 21 & 31(1)(b))

The Court found that sections 15, 16, & 18 which discuss judicial separation & property rights for wives only were unconstitutional. The background of this reasoning was that these provisions conferred benefits and protections on wives but not husbands. This further violated the constitutional guarantee of equality between men and women in marriage and at its dissolution.

c) Right to privacy (Art. 27)

The petitioners argued that open-court divorce proceedings expose private lives which the Court disagreed with. Their reasoning was that while hearings may be uncomfortable, courts require evidence to determine disputes, and that the Evidence Act safeguards exist against scandalous or abusive questioning. Thus, the trial process is not unconstitutional in itself.

(d) Freedom from torture, cruel, inhuman and degrading treatment (Arts. 24 & 44)

Petitioners argued cross-examination and lengthy trials amount to psychological torture which the Court once again disagreed with. They held that torture under Ugandan law and even the Convention Against Torture requires intentional infliction of severe pain for a prohibited purpose. Divorce hearings are judicial fact-finding processes, not intended to torture. The petitioners’ alleged discomfort does not meet the threshold of torture or cruel treatment.

e) Right to fair and speedy trial (Arts. 28 & 126(2)(b))

Two of the petitioners cited delays of 3+ years in their cases. The Court informed the petitioners that the delays were due to judicial backlog, not statutory procedures. To this, they found sections 30, 33, and 38 to be mostly constitutional. Their reasoning was that section 30 (petition to state no collusion) was redundant but not harmful; section 33 which discussed compellable witnesses in adultery + cruelty cases was unconstitutional, because the grounds themselves in section 4 had already been invalidated; and section 38 which highlights remarriage after appeal period was constitutional, since it simply provides procedural certainty.

Issue 3: Whether the Petitioners were entitled to the reliefs sought

After discussing the issues raised above, Court partially granted the reliefs sought by the petitioners. They obtained declarations that the above impugned provisions were inconsistent with the Constitution as well as costs of the petition. However, the Court did not go as far as directing automatic “no-fault divorce by decree nisi”; instead, it held that withdrawal of consent must be placed on court record, after which the decree should issue.

Significance

The ruling effectively introduced a consent-based (quasi no-fault) divorce principle in Uganda: withdrawal of consent by one spouse is sufficient to dissolve marriage. It struck down gender-discriminatory provisions that favored wives only at the dissolution of marriage and affirmed that while judicial hearings remain necessary, they cannot override constitutional freedoms of consent and equality, but at the same time put in place procedural safeguards that is passing through the court to get a decree nisi. The judgement strengthened Uganda’s alignment with progressive international family law standards, while highlighting that broader law reform (Marriage and Divorce Bill) remains Parliament’s duty. This judgment is a landmark in Ugandan family law, moving away from the colonial, fault-based divorce regime of 1904 and affirming constitutional supremacy over outdated legislation.