Today morning I said that I will be making two entries because I am an old man and a cultural anthropologist
This is my writeup in response to Benjamin my mind ran to the case of Mifumi, which had filed a constitutional petition arguing that dowry was unconstitutional .It was an appeal from the Constitutional Court where the constitutionality of “bride price” was challenged at first instance. The custom of refunding bride price on the dissolution of a customary marriage was ruled unconstitutional.
Justice Jotham Tumwesigye, gave the lead judgement,” The term bride price is unfounded and misleading but is deeply rooted within our society, we should desist from it, however the practice is not entirely unconstitutional. The practice to demand for a husband to repay the brideprice at the dissolution of the marriage is unconstitutional” Dr. Kisakye, ” The demand for Bride price before a couple weds amounts to fettering their consent” Hon. CJ “Once brideprice has been paid, it is not viewed as a deposit on the marriage , its a principle of law that once goods are sold, money is not refundable. If that applies for goods , why then would it apply towards a bride who is not purchased?” By Majority Justices 6-1, the appeal partially Succeeded
Now you argued that bride price is wrong, Well,there are different schools of thought on why people pay bride price/lobola as known in RSA .
One of the sources of Law in Uganda are customs. To elucidate that, Buganda has a custom that you cannot marry from the same clan as you would be marrying your brother/sister and court has come out to nullify such marriages https://ugandaradionetwork.net/story/high-court-blocks-same-clan-marriage in essence one would argue that if a person is not my relative by blood, what stops me from marrying such a person? We cannot do away with our culture,it is part of us.
When an individual feels that a particular custom is bad and inconsistent with the constitution, they can petition the constitutional court. There was a legislation, known as the ‘witchcraft Act’ where if a person was found guilty of witchcraft,they would be banished from the village,A one Salvatore Abuki petitioned the court arguing that the provisions in the witchcraft Act were unconstitutional and court agreed and provisions of the legislation were outlawed. You see such a custom is unfair and wrong, someone maybe wrongly accused and there is no fair trial because how can witchcraft be determined?
So the fact is that Uganda’s precedence (decided cases) point out that culture is key in the interpretation. I agree with you on the point that the return of bride price upon the marriage failing is wrong. The Supreme Court agreed with the petitioner and in my opinion, Ladies should not be kept in toxic marriages and fear to opt out because of the refund. Yes some of our cultures are wrong and bad but I see nothing wrong with bride price. There’s the commercialization aspect which is wrong but bride price is a mere appreciation for raising the girl. In Buganda, the brother to the girl is always given a cock (enkoko yomuko) Then while being given away in marriages, the bride cuts cake with the brother, the significance being that it is the last meal he is going to have since the sister is being given away in marriage. So bride price is not bad.