Kampala — IT'S no longer a crime for a married woman to have sex outside wedlock, the Constitutional Court declared yesterday.

Five justices of the Constitutional Court led by Amos Twinomujuni declared the law unconstitutional and quashed several provisions of the law on adultery and succession, saying they discriminated against women.

The judgment arose from a petition filed by a women lawyers association, Coalition for Advocacy, headed by Makerere University Law Dean Sylvia Tamale, challenging several provisions of the law on adultery and succession.

The petition was brought against the Attorney General, who had earlier filed his defence praying for its dismissal because it would encourage immorality.

All the five judges ruled that the law on adultery discriminates against women and their right to have sex relations with persons of their choice, contrary to the Constitution.

It is currently an offence for a married woman to have an affair with a man, married or unmarried. But the law does not punish a married man who has an affair with an unmarried woman. Until Parliament amends the law on adultery, the old legislation is currently outlawed.

The ruling means that adultery is no longer a crime but an aggrieved party can go to a civil court largely to seek damages, separation or divorce in courts.

The judges said: "Section 154 of the Penal Code Act (PCA) which penalises married women on the offence of adultery is discriminatory contrary to the Constitution".

The other judges are Christine Kitumba, George Engwau and Steven Kavuma.

Senior State Attorney Patricia Metosi conceded to the petition although she asked Court not to nullify the sections but to modify them.

The judges overruled her, saying the duty of the Constitutional Court was not to modify laws but to declare the sections in contention constitutional or unconstitutional.

Ladislaus K. Rwakafuzi, representing the petitioner, argued that the Penal Code Act, which penalised any married women who had sexual intercourse with either a married man or unmarried man, was discriminatory because a married man would not be penalised, contrary to the Constitution.

Mr Rwakafuzi said Section 154 (of the Penal Code Act) provided that any married woman who had sexual intercourse with any married man who is not her husband commits adultery and is liable on first conviction to caution and subsequent conviction to six months imprisonment.

Likewise, a married woman who has sexual intercourse with an unmarried man commits adultery and is liable to imprisonment for a term not exceeding 12 months or a fine not exceeding Shs200. In addition, the court shall order such a man to pay to the aggrieved party Shs600 on first conviction and on subsequent conviction Shs200.

Mr Rwakafuzi asked court to nullify the above sections. He argued that the law on succession, which does not allow women to inherit property of a deceased person including their husband's, was discriminatory.

According to Rwakafuzi, various sections of the Succession Act did not allow women to be heir to a deceased person, contrary to the Constitution.

He said Section 27 of the Succession Act, which deals with ownership of property of a deceased person, does not mention anywhere about property of women meaning that women did not own property.

Mr Rwakafuzi further challenged the law that entitled only male relatives of the man to be guardians to a minor whose parents are dead.

He said this law gave a hierarchy of people from the man's side leaving his female relatives and those from the woman's side, contrary to the Constitution.

He argued that the law that enables married women to take over the homes of their late husbands but not the men to take over the homes of their late wives was discriminatory. The justices unanimously concurred with his argument.

The Court of Appeal Registrar Joseph Murangira, who read the judgment, said women will have the best Easter celebrations ever. "Women go and enjoy your rights but don't go on the rampage..."

He said the judgment was final, as the Attorney General did not oppose the petition.

Mr Rwakafuzi said, "I am very satisfied with the judgment; we hope from now on women will be treated with better dignity. This judgment means there is no criminal offence called adultery but the civil law remains in replace. Today if you catch your wife committing adultery, do not involve the police because that will be a crime".

Religious leaders contacted by Daily Monitor were reluctant to comment saying they were not familiar with the details of the ruling. The Chaplain to parliament, Hamlet Mbabazi, said: "That is a conflict issue...I cannot comment outright."