V.STATE RESPONSE

If we made the argument in cents and shillings maybe the government will see it.The government is losing from all the sick days, early deaths and so on. . . . Our [women's] input is not counted.Eighty percent of women are rural.These are figures that are discounted.

-Jackie Asiimwe-Mwesige, coordinator, UWONET, Kampala, December 14, 2002.

Despite constitutional and structural reforms intended to address discrimination against women and to provide women with greater economic and political equality, the Ugandan government has not effectively implemented protections for female victims of domestic violence. The prosecution of domestic violence cases is hindered by state reluctance to intervene in "domestic issues" or to undermine male authority in the home.By emphasizing the reconciliation of husband and wife in domestic violence cases, the state supports a social structure that stresses women's subjugation in marriage and effectively silences battered wives.

Corruption in the police forces and the courts and problems with the forensic collection of evidence have hampered Uganda's response to domestic violence.The state has failed to provide battered women with adequate legal protection and to address both statutory provisions and customary practices that impede women's ability to subsist independently of abusive husbands.It has failed to review and reform discriminatory divorce laws and to harmonize them with constitutional provisions aimed at ensuring women's equality in marriage. Few reliable local statistics on domestic violence exist, making it difficult for policy makers to appreciate the extent of the problem.According to a Ugandan lawyer, the Uganda Bureau of Statistics, the principal data collection agency responsible for coordinating, monitoring and supervising the National Statistical system, had only just begun to disaggregate its data by gender.[240]Additionally, because domestic violence is prosecuted under assault provisions contained in the Penal Code, police records do not treat domestic violence as a discrete offence, making such records of little use in gauging prevalence rates.

HIV/AIDS bodies have not incorporated a rights-based approach in their planning and a lack of funding has hampered government mechanisms targeting women's issues.To date, the government has yet to address seriously the ways in which women's lack of economic autonomy, domestic violence, and women's vulnerability to HIV transmission intersect.

As a result of this abdication of state responsibility, NGOs have provided what little recourse has been available to battered women. In a discussion on the government's response to domestic violence, Prime Minister Apolo Nsibambi told Human Rights Watch: "These matters and that kind of violence cannot be handled by the state alone.It requires religious leaders, LC chairmen, teachers, it requires all forms of leadership to address it."[241]NGO leaders have argued, however, that the government is leaving too much of the responsibility to civil society.Peace Kyabuleko of the National Women's Organisations of Uganda, the overall coordinating body for women's organizations in the country, countered: "As NGOs or civil society we are taking on too much for ourselves.It is the government's responsibility to see that our rights are protected as Ugandans and as women."[242]

Shortcomings within the Legal Framework

I'm tired of keeping trying to change consciousness.We need changes in the law.

-Deborah Kaddu-Serwadda, women's rights activist, Kampala, December 10, 2002.

Despite the enactment of a gender-progressive constitution, the Ugandan government has failed to use the law aggressively to combat domestic violence and to modify or repeal legislation that discriminates against women.[243]Discriminatory provisions of the Divorce Act remain on the statute books.The government has failed to adopt and enact legislation such as the Domestic Relations Bill and the Sexual Offences Bill that have been designed to provide better protections for women's bodily integrity and sexual autonomy in marriage, outlaw harmful traditional practices, and improve women's property ownership rights.The government has failed to provide specific protections from domestic violence, and parliament only recently moved to provide for women's security of occupancy on family land under the Land Act (Amendment) Bill 2002; President Museveni has reportedly declined to assent to the bill.[244]

Prime Minister Apolo Nsibambi told Human Rights Watch that women have a "unique opportunity to be in government, the legislature and even at the local level and that affects the nature of legislation.You cannot ignore the woman question."[245]However, based on our own research and according to many local NGOs, the government is doing precisely that.What is certain is that the government has displayed a blatant disregard of its obligation to enact laws to protect the women of Uganda from spousal violence. Dora Byamukama, member of parliament, and coordinator of Law and Advocacy for Women in Uganda (Law-U), emphasized this point:

Uganda rushes to ratify international conventions to look good but when it comes to domesticating them it drags its feet.People argue that we must take account of prevailing circumstances.Yes, but the law should be used as a light to show the way because sometimes the dynamism in society takes a while.We're talking about international conventions, civil society.We cannot wait for society to catch up.The law sometimes must lead in order to make change.[246]

Discriminatory Marriage and Divorce Laws

Ugandan marriage and divorce laws discriminate against women and contravene constitutional provisions providing for nondiscrimination,[247] equal protection of the law,[248] and equal rights in marriage, during marriage, and at its dissolution.[249]In 1999, the government admitted: "[I]n the laws of marriage, divorce or inheritance, there is no gender equity or fairness to date.The woman is always in a subordinate position.This position is aggravated by the requirement in most marriages that bride price be paid to the parents of the female so that the family and clan of the husband tend to take the woman as property."[250]

Statutory divorce laws in particular provide little in the way of protection for battered women and the grounds for divorce available under the Divorce Act impose an inequitable burden on women attempting to formally terminate their marriages.[251] Under the act, a woman cannot simply accuse her husband of adultery, but must couple her claim with either cruelty or desertion, or claim that the adultery has been incestuous or bigamous or is accompanied by (polygynous) marriage.[252]There is no such legal requirement for men.As the "aggrieved party," only husbands may claim damages for adultery from co-respondents,[253] implying that only the husband's rights have been violated and underscoring women's subordinate position in marriage.In general, under customary law, husbands have numerous grounds for divorce available to them, including infidelity, infertility, adultery, witchcraft, or insubordination.The grounds available to wives are limited to impotence, excessive cruelty, and desertion.[254] Alimony payments are provided for under the Divorce Act[255] and maintenance[256] is available under Common Law and custom.However, most women who spoke to Human Rights Watch were largely unaware of these options and of the processes required to institute suits for maintenance.

Discriminatory divorce laws punish women for perceived moral transgressions and deprive them of their legal rights.Under section 27 of the Divorce Act, in the event that a wife's adultery has been the cause of a divorce or judicial separation, a court may order that the whole or part of a wife's property be settled for the benefit of the husband, or of the children of the marriage, or both.There is no such provision targeted at men.On March 6, 2003, the Strategic Litigation Coalition, composed of private practitioners and women's groups including FIDA, UWONET, and Law and Advocacy for Women in Uganda lodged a petition in the Constitutional Court seeking a declaration that the Divorce Act be declared inconsistent with the constitution.[257]

A large number of the women had either moved in with their husbands without any formal marriage ceremony taking place or were in relationships in which the customary steps had not been completed.Despite the prevalence of women cohabiting with their intimate partners, the law fails to protect women who cohabit in very significant ways.For example, section 40 of the 1998 Land Act, which protects against the sale of family property without family consent, only applies to formally married couples.[258]The 2002 land and gender rights survey found: "W omen who are cohabiting were concerned in both Mpigi and Lira that if the man dies even their access rights will be withdrawn by the man's clan, since theirs is not a recognised union ."[259] Joanne Apecu, a senior legal officer at the governmental Law Reform Commission (LRC), explained that they do not presume cohabitees to be spouses as there are no obstacles to the formalization of relationships, and women have the opportunity to marry under a number of systems.Although she admitted to strong pressure from women's groups to presume the existence of marriage for longstanding cohabitation, she argued that as the constitution requires consent to marriage, women should ensure that their unions are formalized in order for them to be recognized under the law.Apecu further stated that there was a need to protect societal morals, and argued that since the main concern related to property ownership, the best protection would be to sensitize women to register their property rights.[260]This position, however, ignores the inability of many women to make demands regarding their marital status or property ownership because they are in abusive relationships, are economically dependent on their spouses, or both.

Unequal Property Rights

[A]ny law or custom that grants men a right to a greater share of property at the end of a marriage or de facto relationship, or on the death of a relative, is discriminatory and will have serious impact on a woman's practical ability to divorce her husband, to support herself or her family, and to live in dignity as an independent person.

-CEDAW Committee, General Recommendation No. 21, Equality in marriage and family relations, para. 28

Customary doctrine, discriminatory laws, and a lack of legal education restrict women's property ownership.[261] Although the statutory law acknowledges the right of all Ugandans to own land,[262] traditional practice leaves women with user rights only.Land tenure in Uganda is primarily held according to the customs and traditions of the differing ethnic groups.Customary tenure defers to male authority, while marriage and kinship ties define women's access to land and the interests of extended family limit their rights of devolution.[263]Characteristically, women are provided with user rights in order to assist in sustaining the household, but are denied the benefits of ownership.[264] In a study conducted on behalf of the Uganda Land Alliance, the Makerere Institute of Social Research stated: "Customary tenure has evolved in deference or transfer of authority to men and the clan is used to protect this evolution.The once enshrined rights of access for all and the principle of unity of possession for the family unit is no longer upheld.To this extent, the legalization of customary tenure further entrenches the clan thinking and subjugation of women."[265] The 2002 land sector analysis commissioned by the government found: "Recent legal changes under the Land Act aimed at strengthening the land rights of women . . . through the requirement of consent to transactions on family land[,] have had little effect on the ground."[266]A number of lawyers who provided free legal representation to indigent women told Human Rights Watch that the majority of women's complaints involved intra-familial disputes over women's land rights and women threatened with eviction from their homes.[267]

Even though women are the main agricultural producers, they have little control over decisions on which crops to plant and are often obliged to hand over any money they make to their husbands.A cycle of poverty therefore ensnares women: lacking rights over land, they are economically dependent on their husbands who retain the earnings from the labor provided by their spouses. Lawyer Irene Kakooza asserted: "In the rural areas the woman is being battered.Yet she is producing all the cash crops to make money, which the man spends on alcohol and then beats her.We need to ensure that women get a share of family property so men don't leave them destitute."[268]

Many of the women were no longer in school, or were too old to have benefited from the Universal Primary Education system.Minister of Ethics and Integrity Miria Matembe argued: "The president talks about education.My mother cannot go [to Universal Primary Education].She cannot inherit her father's property now.What happens to these women?They cannot inherit the property they are working on now.Where do they belong?How do they get property?"[269]In a letter addressed to the Minister of Justice and Constitutional Affairs Janat Mukwaya, President Museveni acknowledged the particular problems women face when their relatives rob them of property after their husband's death.He wrote: "Take the example of the brothers, sisters and parents of the husband thinking that they are entitled to the property of the family in case of the death of the husband.This has, fortunately, been overtaken by events.It leads to parasitism.There are family members who do not work and hope to suck the ones that do.This must be rejected and sorted out."[270]The 2002 gender and land rights study commissioned by the government established that "property grabbing" was consistently women's primary concern with regard to land ownership,[271] and stated: "Women who are separated, divorced, or abandoned generally lose all their rights to their land, their children, and their house.No law protects them. . . . Yet, a significant portion of women falls within this category."[272]

Legislative reforms under the 1998 Land Act, which provide some protection for women, are nevertheless undermined by gaps in existing legal provisions or implementation mechanisms.In 2002, an article on land rights for women commissioned by the Uganda Land Alliance commented: "The situation of women's, children's, and orphans' land rights on the ground does not appear to have been significantly affected by all these reforms.The little research conducted to date suggests that while many people are aware of, and some support, the reforms, this has not translated into improvements in the security of land rights of many women."[273]Section 40 of the Land Act requires prior written consent of both spouses in transactions involving family holdings.However, the land must be one on which the "person ordinarily resides with his/her spouse and from which they derive their sustenance."[274] Thus a wife must actually live on the land for her consent to become necessary.In addition, the woman must be legally married to the owner of the land for the section to be applicable.For illiterate women, the requirement for written consent absent witnesses is open to abuse.Most significantly, despite extensive lobbying on the part of women's organizations and parliamentary discussion and approval, a spousal co-ownership clause was omitted from the provisions of the act.[275]Baptized the "lost clause," spousal co-ownership became the focus of a land rights campaign led by women's rights groups and was intended to provide legitimacy to women's property claims.[276]The campaign, however, was suppressed at the highest levels and was painted as a clause that might lead to "professional land-grabbers."[277]Minister of Justice and Constitutional Affairs Janat Mukwaya told Human Rights Watch: "In my view women should inherit from their father.I should have the same right as my brother.Why should I inherit from a man if I can't inherit from my father?I would not want African marriages to turn the European way where love is turned into property acquisition."[278]

By contrast, when asked to comment on the opposition to women's co-ownership of property, Minister of Gender, Labor and Social Development Zoe Bakoku Bakoru stressed the need for greater protection: "We also need to get women to understand what their rights are, at least the ones they have.We need some level of training so women can claim back land that husbands have sold out from underneath them."She went on to say that those with access to property should not oppose the passing of laws that would benefit poor women, concluding, "We can't make a different law for the rich and poor."[279]

On June 18, 2003, parliament reportedly passed the Land Act (Amendment) Bill 2002, which provides for spousal "security of occupancy" on family land, thereby affording women greater protection from eviction.However, moves to include a clause requiring registration jointly in the names of the spouses and dependent children were rejected, and the right of women to own property jointly with their spouses remains absent.The bill requires presidential assent before it is passed into law.[280]As noted above, President Museveni has reportedly declined to give his assent pending further discussions.[281]

Discriminatory Inheritance Laws

The enactment of the 1972 Succession (Amendment) Decree was intended to rationalize the law of inheritance and make it applicable to all Ugandans.The decree restricts the application of customary law, recognizes women's right to inherit from their husbands and fathers, and preserves the right of widows to remain in the matrimonial home until remarriage or death.However, customary law continues to be applicable with regard to the appointment of a "customary heir"[282] and in polygynous marriages.According to a U.N. study, in intestate cases, wives receive 15 percent of the estate (other than residential land) shared equally,[283] while customary heirs receive 1 percent, dependent relatives receive 9 percent, and "lineal descendents" (children and grandchildren) receive 75 percent.[284]Where there are no lineal descendents, wives receive fifty percent and 99 percent where there are no dependent relatives.[285]While widows have the right to occupy any residential holding and to cultivate adjoining land,[286] the right of occupation is limited to those pieces of property, and such occupancy rights terminate upon the widow's remarriage.Further, widows have no right to sell the land.No such restrictions are applicable to widowers.Where no marriage formalities have taken place, the wife or wives are left to share the portion allocated to dependent relatives.[287]

In reality, the succession laws are largely ignored.The court procedures for administering estates are arduous and costly, and unless grants of probate or letters of administration are required for formal matters (such as for banking purposes), or property disputes are referred to the courts, customary practices are commonly followed.

Domestic Relations Bill (Draft)

The Domestic Relations Bill (Draft)[288] is a crucial piece of legislation for Ugandan women.It addresses women's property rights in marriage and women's right to negotiate sex on the grounds of health, sets the minimum age of marriage at eighteen, and criminalizes widow inheritance.[289] The payment of bride price will no longer be essential for the formalization of customary marriages, and any demands for the return of "marriage gifts" will be an offence.[290] The bill criminalizes marital rape and provides for civil remedies, such as compensation and "restricting orders."[291]The grounds for divorce are equally applicable to both spouses[292] and alimony is provided for.[293]The Domestic Relations Bill continues to exclude cohabitation from the presumption of marriage, but provides parties to such relationships with certain rights, including the right to register the fact of cohabitation and particulars of any monetary or non-monetary contributions made.A competent court may then distribute the property equitably in accordance with those contributions, and may do so even when registration has not taken place.[294] Polygyny is also strictly regulated by guidelines that provide for the economic support of all wives.The bill also provides for equal sexual rights and establishes more equitable grounds for divorce.However, despite vigorous lobbying by women's rights groups, the bill's enactment has been in abeyance since the early 1990s. Proponents of the bill cite challenges to long-held male-dominated privileges as the major obstacles to its enactment.Betty Akullo of the Domestic Violence Project, which was established to strengthen domestic violence prevention efforts in the Kawempe Division of Kampala, said, "It's nowhere because it's challenging [male] power."[295]

Women's groups lobbying for the enactment of the Domestic Relations Bill told us that the bill lacks high-level support. [296] President Yoweri Museveni has reputedly called for numerous reviews of the Bill, a move some women's rights activists described as "delaying tactics."[297] In his letter to Janat Mukwaya, President Museveni argued that the bill is trying to assimilate western habits:

First, marriage will not be because of love.It will be because of inheritance anticipation.Secondly, propertied men or women will have to be quite wary about marriage for fear of losing their properties to unscrupulous spouses.Thirdly, it will cause quite a few murders because those who got into marriage relationships without love will now take the first opportunity to get rid of their counter-parts since they are sure of inheritance.Fourthly, property expansion will be paralyzed because of the difficulty in decision-making on account of co-ownership.[298]

Minister of Ethics and Integrity Miria Matembe countered: "The government asks for more research and says we shouldn't copy western habits.But why do we copy western things in other areas and not this one?"[299]

According to NGOs, the primary resistance to the Domestic Relations Bill relates to women's right to marital property.The Domestic Relations Bill includes as matrimonial property: the matrimonial home, household property, any property immovable or movable acquired during the marriage, and any immovable property owned by either spouse which provides the basic income for the family.[300]Any matrimonial immovable property is to be owned in common.[301]The bill also introduces the principle of "non-monetary contribution" or "sweat equity," that entitles a spouse to a beneficial interest in property equivalent to contributions made through activities such as domestic labor and farming.[302] Opposition to this concept has been widespread and has reportedly included affluent women political leaders.While closing the Women's Worlds Congress 2002 held in July at Makerere University, former Vice President Specioza Kazibwe urged women to buy their own land instead of seeking co-ownership.[303] According to a women's rights activist, in November or December 2002, Lira municipality member of parliament, Cecilia Ogwal stated that she would oppose the enactment of the Domestic Relations Bill because it would make women "lazy."[304]Although even President Museveni acknowledged the significance of women's labor in his letter to Mukwaya, he then went on to say that men should therefore recognize women in their testamentary dispositions, thereby continuing to leave the ownership of property in the hands of men."By giving up everything else and coming to live with you, look after your house, bear and bring up your children, she is helping you and freeing you to do other things.You should, therefore, not leave out of your will (kiraamo) such contribution, though indirect."[305]Under the Domestic Relations Bill, there is no division of matrimonial property upon separation although a court can rule that spouses are to share any income.

Efforts to abolish polygyny under the Domestic Relations Bill have also met with great resistance. Joanne Apecu at the Law Reform Commission confirmed that the initial intention was to outlaw the practice.However, pressure from the Muslim lobby meant that a compromise had to be struck, balancing their interests with those of women's rights groups.[306]As a result, polygyny continues to be permitted with certain restrictions, including the obligation to maintain absolute equality between the wives.[307]Matrimonial property is to be shared between the husband and each wife present at the time of its purchase.[308]A wife will also be entitled to petition for divorce before the expiration of the statutory waiting period of two years on the ground that her husband is in the process of marrying again without her consent.[309]Human Rights Watch interviewed some individual men and women who argued against an outright ban on polygyny, contending that monogamous marriages are a creation of the west.Dr. Hafsa Lukwata of AUWMD argued: "I am Muslim.Women are getting infected because of men's actions.Polygamy has advantages and disadvantages.If the man is uneducated and you don't have bargaining power then it's terrible.But if you are free to communicate it's okay."[310]Unfortunately, the majority of the women we interviewed were suffering precisely because they did not have bargaining power. Moreover, field research carried out by Law and Advocacy for Women revealed that 86.7 percent of a focus group in Iganga and 80 percent of a Kampala focus group identified polygyny as a cause of domestic violence.[311]Ruth Mukooyo of the FIDA Legal AID project argued: "The constitution talks about equality.Polygamy offends this principle.Most of our population is polygamous.Even when they marry in church they still go and get other pseudo-wives.They had to compromise in the Domestic Relations Bill.Therefore now they require the wife's consent. . . . Polygamy really encourages violence.It is psychological torture for wives which leads to conflict."[312]

Under the Domestic Relations Bill, spouses are provided with equal rights of "consortium," which includes the right to sex.However, rather than eradicating the presumption of consent in marriage, spouses are instead permitted to refuse to have sex with their spouses on "reasonable grounds," including poor health and a reasonable fear that engaging in sexual intercourse is likely to cause injury or harm.[313] Apecu told us that in considering marital rape, the LRC had to balance the protection of the family with the rights of individuals.She added: "The presumption of consent is the main obstacle and we have to use it as the starting-point.It is too hard to change.It is cultural. It has been there for so long.It hasn't changed anywhere else, why should Uganda be the first?What would marriage be about really if we don't have the presumption?How would the family go on?"[314]However, the accounts in this report demonstrate clearly the ways in which the presumption of consent exposes women to rape and HIV transmission.

Although government officials defended the concessions they have made by arguing that the interests of all groups need to be taken into account, women activists contended that in coming to this compromise, women's rights were, as ever, undermined.[315]In June 2003 the cabinet had adopted the LRC's position on the Domestic Relations Bill and it remained with the Ministry of Justice to present the draft bill to the cabinet.An NGO representative affirmed that civil society organizations will continue to advocate for its enactment both in the media and under the Strategic Public Litigation Coalition of Uganda.[316]

Sexual Offences (Miscellaneous Amendments) Bill

The Sexual Offences (Miscellaneous Amendments) Bill contemplates the repeal of certain provisions of the Penal Code and criminalizes forced sex in marriage under the term "marital sexual assault."[317] The provision makes it an offence to perform a sexual act with a spouse against his/her consent irrespective of whether the couple is living together under the same roof.However, Section 118A(3) also limits the terms under which a spouse can refuse consent to sex to "reasonable grounds," including poor health and a reasonable fear that engaging in sex is likely to cause injury or harm.[318] Opposition has arisen over the introduction of marital rape, a term which one lawyer described as having "raised hell."[319]One women's rights activist told Human Rights Watch that opponents of the Sexual Offences Bill maintain that the criminalization of forced sex in marriage would only serve to provide a pretext for women to harass their husbands.[320]

Lack of Domestic Violence Legislation

There is a continued need for specific legislation to arm those structures attempting to tackle spousal violence. Livingstone Sewanya, executive director of the Foundation for Human Rights Initiative, an NGO that promotes human rights and democracy through civic education and advocacy, explained the prevailing perspective on domestic violence: "Domestic violence is not recognized as a basic human rights issue.Matters concerning spousal abuse have generally been relegated to the family and the community as responsible actors and not necessarily in the public sphere.The starting point is how domestic violence is a human rights issue and deserving of punishment."[321]

Currently, assault provisions contained in the Penal Code are used to prosecute intimate-partner violence against women whether as simple assault, assault occasioning actual bodily harm, or assault occasioning grievous bodily harm.[322] Apart from forced sex, the Domestic Relations Bill does not address domestic violence as the Law Reform Commission (LRC) considered the bill to be "overloaded."[323]The LRC has recommended that a separate study of domestic violence be carried out but does not have the funds to do so.[324]Joanne Apecu asserted that the LRC proposal on the bill has been ready since 1998/1999.[325]

Specific legislation on domestic violence and its enforcement is critical in order to address the violations described in this report. Assault provisions under the Penal Code are not tailored to the distinctive social, cultural, economic, and political circumstances under which domestic violence unfolds.Jackie Asiimwe-Mwesige of the Uganda Women's Network argued: "Assault under the Penal Code does not capture intimate violence that is based on control, power, and a relationship of trust.A stranger assault is very different."[326]Additionally, a domestic violence statute would offer more appropriate remedies and protections than are currently provided for under the Penal Code, such as the compensation of victims, orders for child custody, emergency protection orders, and the removal of the offender from the home.

Using general assault provisions to address domestic violence also prevents the disaggregation of data and makes it difficult to direct funds and services where they are needed. Edward Mugyimba-Nimbatsa, assistant commissioner and focal point officer on HIV/AIDS in the Ministry of Gender told Human Rights Watch that the absence of a domestic violence statute particularly prevents the allocation of funding to the Ministry of Gender for specific sector plans on domestic violence."As the legal framework has not been cleared they can't allocate the money.So groups on domestic violence cannot access money except through projects like DANIDA credit and legal project."[327]A domestic violence law would also facilitate women's rights groups in procuring funding for shelters for victims of spousal abuse.Ultimately, the political will is absent for effective change.Lawyer Irene Kakooza asserted, "We don't have the critical mass within the legislature to pass these bills."[328]

Failure to Implement Constitutional Protections

The 1995 Constitution is the supreme law of the Republic of Uganda.[329]Article 21 confirms the equal status of all Ugandans before the law, provides for the equal protection of the law, and prohibits discrimination on a number of grounds including sex.[330]Article 33 accords women equality with men and provides: "Laws, cultures, customs or traditions which are against the dignity, welfare or interest of women or which undermine their status, are prohibited by this Constitution."[331] However, policy has failed to translate into action, and there has been a distinct failure to implement constitutional provisions to protect women.Dipak Naker, co-director of Raising Voices, told Human Rights Watch: "What is missing is the link between paper and community. . . . What practical mechanisms are there?This is often overlooked.Uganda has a brilliant, progressive constitution for women.But it is not operationalized."[332]

The constitution is designed to provide for the Ugandan people's most fundamental rights and freedoms.Yet women's constitutional rights are literally trampled upon on a daily basis.In 1999, the Ministry of Gender, Labour and Social Development (Ministry of Gender) noted: "It should be observed that whereas in the new constitution there are positive provisions, it is still too early to celebrate their application as the law enforcement organs are adjusting to meet the constitutional principles.Moreover, economic, social and cultural constraints still hinder the full realization of women's equality."[333]

Impediments in access to justice deny women equal protection of the law.[334] Property violations committed by spouses and in-laws transgress constitutional provisions affording every person protection from the deprivation of property.[335]Forced sex, women's inability to negotiate condom use and procreation, unequal rights over children, and discriminatory grounds for divorce contravene women's entitlement to equal rights during marriage, and at its dissolution under article 31(1) of the constitution.[336]Polygynous unions, which entitle husbands to marry multiple spouses, are also inconsistent with article 31(1).[337]The failure of the government to enact legislation such as the Domestic Relations Bill contravenes Parliament's constitutional obligation to make appropriate laws for the protection of the rights of widows and widowers to inherit the property of their deceased spouses and to enjoy parental rights over children.[338]The state also has a responsibility to "take affirmative action in favor of groups marginalised on the basis of gender, age, disability or any other reason created by history, tradition or custom, for the purpose of redressing imbalances which exist against them."[339]Parliament has the responsibility to make laws to give full effect to this clause.[340]

NGOs have contributed memoranda to the Constitutional Review Commission[341] specifically requesting that people living with HIV/AIDS be included as a category of marginalized groups requiring affirmative action under article 32(1) of the constitution.They have also recommended that article 33(3) be amended to protect women's sexual and reproductive rights, including: the right to determine the number and spacing of children; freedom from forced conception; freedom from marital rape; freedom to use a contraceptive method of one's choice; freedom from sex that endangers health; and freedom from cultural practices that endanger the sexual and reproductive functions of women's health, such as female genital mutilation.[342]

Constraints to Effective Prosecution

The government has failed to ensure that domestic violence is adequately investigated by the police and prosecuted in the courts.Human Rights Watch interviews showed that the belief that domestic violence is a private concern that should not involve the state was prevalent within the police force and at the local council level.In 2002, a women activist wrote: "[The] application of equality in Uganda is asymmetric.It subjects relations in the public sphere-the world of political participation, employment and education-to minimum standards of equality.In contrast, it relegates the private sphere of the home and family to an arena that is almost beyond justice."[343] Interviews with police and state prosecutors indicated that women's economic vulnerabilities made efforts to pursue domestic violence cases difficult, and that although a small number who filed charges followed their cases through to their conclusion, most ultimately withdrew their complaints in order that their partners could return home and provide for the family.Often this resulted in further violence.

One state prosecutor informed Human Rights Watch that biased attitudes in the police force and economic constraints meant that those cases that were prosecuted were usually the most egregious, often resulting in the woman's death.[344]In 1999, the Ministry of Gender reported on biases against women in the legal system:

A close look at the administration of justice, particularly law enforcement, reveals that women in Uganda still experience gender discrimination and bias in courts and the whole justice delivery system. . . . The law is gender neutral but its application and enforcement tends to be biased; the Ugandan legal regime discriminates against women and perpetuates women's subordinate position in society; the attitude of law enforcement officers and agencies, even where laws are non discriminatory, influences the application of the law by judicial officers, magistrates, and judges as well as the police and prison service.[345]

Police

Bear in mind he [her husband] would go away for two weeks and then come back and force me, with his might. I did not complain to anyone after that. . . . It's culture, there is no way you can go to the police and say your husband has raped you. They say "he brought you from your home and this is the job you came to do."There is no way you can report him or seek legal advice.

─Rita Mukasa, Nakulabye, January 15, 2003.

The government has taken steps to improve the police response to family matters.It has established family protection units in thirty-three out of forty-eight districts[346] and, despite the absence of a specific statute, a domestic violence unit has been established at Kawempe police station.However, Superintendent of Police Helen Alyek at the Child and Family Protection Unit at Nsambya Police Station pointed out that sensitization was largely restricted to the urban areas.She told Human Rights Watch that most of the training was donor-funded and resources were thin on the ground.[347] Although women are increasingly employed in the family protection units, the numbers of male officers continued to far outstrip their female counterparts.Superintendent Saboni argued that there were not enough women police officers dealing with domestic violence and marital rape and that this limited effective police response.[348]

When Magdalene Namatovu's husband raped her in front of her children in January 1993, she tried to file a complaint at her local police station.She told us: "I was looking for a law to protect me and my children.I realized I could go to the police and went the next day.When I got to the police they said they couldn't get involved in domestic affairs.After some time, I thought about seeking help from the probation office.[349]The probation office called for a family meeting.With the probation office, the only issue they examined was the three children he had disowned.But they didn't look into the issue of forced sex or the many children I had to raise."[350]

Lawyers described the level of police response to domestic violence cases as erratic and dependent on the particular station. Officer Abbey-Ngako, who heads the Kawempe domestic violence unit admitted, "Not all policemen have been taught to handle the cases."[351]A number of lawyers referred to complaints of domestic violence being treated lightly and on occasion even with scorn.Martha Nanjobe at the Legal Aid Project told us: "Women complain about the police when they report domestic violence.I have those complaints.The police are unsympathetic, jeering at the women even."[352]

NGOs, victims of domestic violence, and government officials criticized police officers for viewing domestic violence as a private family issue rather than a crime. Joanne Apecu of the Law Reform Commission stressed: "The police look at [domestic violence] as a domestic issue.The perception [is] that the man has discipline rights.They should be looking at it as a criminal assault.Most times they will send the woman back home."[353]Deputy Director of Public Prosecutions Simon Byabakama-Mugenyi agreed: "From reports I received, there is a tendency on the part of some police personnel to regard cases originating from homes as 'domestic affairs.'Even initially, they are not handled with the kind of seriousness they deserve."[354]At a minimum, the police should apply assault provisions under the Penal Code without discrimination.However, lawyers argued that police placed greater emphasis on cases of stranger assault.Lawyer Irene Kakooza told Human Rights Watch: "It seems in the mind of the police, assault is discriminatory in its application.They seem to think that street assault is prosecutable but in the home it is a domestic matter."[355]

According to one activist, even where the police did address domestic violence complaints, officers often compounded the problem by blaming the women for the violence and placing the burden for resolving the matter on their shoulders.As a result, women withdrew complaints and returned home to increased violence from outraged husbands.[356]Officer Abbey-Ngako of the domestic violence unit told Human Rights Watch: "We emphasize treatment.We make him promise that he won't mistreat the wife or we'll go to court.Very few cases are referred to the family court."[357] Officer Abbey-Ngako emphasized the sanctity of the family unit as a rationale for reconciliation."We've discovered that many cases are due to a lack of awareness.We counsel and they see their faults.Once they reconcile there's no point in going to court.It creates permanent enmity.The law imposes a duty to bring up the children."[358]

Endemic police corruption plays a central role in impeding the prosecution of domestic violence.Lawyer Maureen Owor worked at the Directorate of Public Prosecutions for seven years prior to setting up in private practice.She has handled a number of criminal and family law cases, and sat on a commission of inquiry into corruption in the police force as lead counsel.She described her experiences with the police's treatment of domestic violence cases: "The few cases [of reported domestic violence] that I know of are killed off at the police station.They [the police] are the first to negotiate with the wife.If the man pays a handsome fee, the files are not sent to the court.If it is not sent, the [prosecutor's] office will not know it was reported.Many of my present clients will say they went to the police but it was not followed up, or the relatives exerted pressure.I never prosecuted domestic violence cases [at the Directorate of Public Prosecutions]."[359]

Some women accused the police of imposing "unofficial fees" when they tried to lay complaints.Our interviews with lawyers, victims, and police officials such as Superintendent Saboni revealed that in some stations, fees were levied for the Police Form 3 (PF3) that provides for medical examinations of victims. Other unofficial fees included photocopying and transport.Alice Namagembe told Human Rights Watch that in about 1998, her husband hit her above her eye and her aunt advised her to go to the police.She went to Entebbe police station, where they charged her UShs3000 (U.S.$1.52)[360] for making the statement and asked for UShs5000 (U.S.$2.54) to arrest her husband, which she did not have.They took her statement but did not give her a medical form although they could clearly see her injury.[361] Officer Chris Salongo is in charge of the Child and Family Protection Unit at Kawempe Police Station.He informed us that they did not charge for the PF3 form, although the medical examination cost UShs5000 (U.S.$2.54).Officer Salongo also asserted that the doctor charged UShs10,000 (U.S.$5.08) to undertake an examination for rape or assault, a fee few women could afford.[362]

As it stands, the handling of complaints is currently at the discretion of individual officers, which can result in women having to return to highly dangerous situations that have, in the meantime, become increasingly volatile. The absence of a specific domestic violence statute also leaves it in the hands of the officers to classify the offence and decide whether victims of domestic violence will receive medical attention. Officer Salongo told us: "We are the ones to categorize the offence because domestic violence is not stipulated by law. . . . We decide based on her injuries whether she goes for a medical examination.There is common assault where there is a slap.That does not get a medical form."[363]The absence of a standardized investigation protocol makes for a haphazard response to domestic violence, and risks serious injuries being ignored by less committed officers.

Some police officers told Human Rights Watch that the fact that women often recanted and withdrew the charges frustrated serious attempts to deal with domestic violence cases.Senior Superintendent Jessica Saboni said: "The police also get frustrated because they start investigations and women ask for [them] to be withdrawn.They feel like they're wasting their time."[364] Byabakama-Mugenyi sympathized, and said that prosecutions of domestic violence cases often stalled because the main witness, the wife, is not compellable under Section 119 of the Evidence Act.He told us: "It is very difficult without a complainant.She is the key witness.She bails out.What do you do?"[365]Additionally, other witnesses are usually family members who are reluctant to cooperate.[366]Nevertheless, improvements in training and police recruitment can go a long way to enhancing women's chances of escaping violent situations.Superintendent Saboni admitted: "Look at the facilities.We have no way of removing the woman from the danger.We have no place for her to stay safely. . . . Women don't think that the police have the capacity or the right attitude to deal with domestic violence.Most of them do still think like that.There are very few officers that understand the problem."[367]

Evidentiary issues also constrain the effective prosecution of domestic violence cases.The collection of physical evidence, critical to prosecuting both physical and sexual violence cases, is impeded by the scarcity of police surgeons.At the time of our visit, there was a sole police surgeon[368] in Kampala to handle all the cases requiring physical evidence.Martha Nanjobe of the Legal Aid Project said,

We find problems with the police surgeon.There is one and he has a lot of cases.So physical evidence may disappear.We advise women to go to any clinic and gather evidence when it is still fresh.[The police surgeon] covers traffic cases, all physical injury cases, testifies, and so on.So if you want to be seen quickly you may need to pay a "fee."There are no free clinics.Women will have to pay and many clinics are manned by nurses.You need a doctor for the court case so that they can testify in court and establish the cause of injury and not have their credentials distorted.So they have to go to hospitals.The President said last year that they would be free but they are not yet.[369]

Local Council Courts

One woman [victim of domestic violence] in the village went to the LCs.She was sent to settle issues at home.So I've never bothered to go.

-Lucy Akurut, Pallisa, January 10, 2003.

Local Councils[370] (LCs) are important institutions because they are established at the community level and are endowed with social legitimacy.Their informal nature and proximity have made them popular, and they are often the first point of access for women who seek assistance on family matters.However, many women who were in abusive relationships felt the LCs were not viable options, either because they believed their husbands could influence the decision, or, more commonly, because they anticipated that the LCs would not be willing to become involved in marital issues.Despite being persistently raped and beaten by her husband, Sara Kisakye never went to her local LC or the police.She explained, "I thought I would never get help there."[371]When Rita Mukasa's husband evicted her she did go to the LC3 court for help.She told us: "The court wasn't helpful because it turned out [her husband] had friends on the LC3 council and this influenced the magistrate. They told us to [come to] an agreement."[372]Jacqueline Nakitende, who suffered a miscarriage as a result of being raped by her husband, also went to the LC for assistance.She did not find any.She told us, "I reported to the LC but they said they couldn't do much because he was an army man and they were rough [dangerous]."[373]

Positive steps have been taken in mandating that a third of LC officers be women.However, according to NGOs, the level of response to domestic violence varies with the court and depends on the level of sensitization of the particular officers and the number of women who actually hold office (above and beyond the mandatory number).In many cases, reconciliation, rather than reporting the matter to the police, will be the first course of action.LC1 Chair Philip Wanyama confirmed that their primary goal is to reconcile the parties before referring the matter to the police.When Hadija Namuganda's husband bit her ear off, she went to her LC.She told us, "They said we should compromise and he should pay my medical bills which he did."[374]Betty Akullo, a lawyer, had worked with the LC1 in her area.She criticized the response to domestic violence: "Many of them would say 'you are a woman, go back home, respect your husband.'It's only I who pushed for cases to be taken to the police.In other areas, it may not get pushed at all."[375]

There were also disparities in the imposition of fees.Akullo pointed out that depending on the particular area and court, the woman could be made to pay a "facilitation" fee when filing a complaint. In these cases, women who could not afford to pay a fee were excluded by the justice system.Sules Kiliesa, a victim of domestic violence, complained: "If you want to be listened to by the LCs you have to pay money.Then they dismiss you."[376]Wanyama confirmed that the imposition of fees was irregular: "There is no charge for the woman to bring the case at LC1.That should be the countrywide system.But I hear some local leaders use it to get money.But women don't have money in most cases.It would mean denying them justice."[377]

Some LC officers who spoke to Human Rights Watch seemed to be unaware of the widespread nature of domestic violence and of the fact that many women did not perceive LCs to be viable sources of support. Isma Tamale, LC1 Defence Chair in his village, was shocked to hear that many women did not feel that the LCs could help them: "We have cases of violence against women but not many.Men leaving their wives in the houses without giving them assistance and quarrelling with their wives. . . . Yes, I mean beating. . . . I'd be surprised to learn that there are many women who are beaten who don't come to the LC.It's probably because they still love their husbands.I don't agree that if they don't come it's because they don't see the LC as a solution. . . . I won't lie, we have no programs to deal with domestic violence as yet."[378]

While Wanyama revealed an awareness of the need to adopt a gender sensitive approach in handling matters at the LCs, he may be in the minority.Human Rights Watch also heard that the LCs are not always "women-friendly."Pastor Owori underscored this, saying: "Local councils always support the men.I participated in research [on the accessibility of local councils].In most cases husbands are protected by men.They will make sure that the matter is resolved without going to the police.They belittle her, call her 'Mama Kelele' [Mrs. Noisemaker]."[379] Senior Superintendent Jessica Saboni argued: "LCs don't have the professional capacity to deal with domestic violence.They still deal with it in a very traditional way.If it's a grievous harm it should come to the police."[380]Minister of Ethics and Integrity Miria Matembe worked as an LC1, 2, and 3 councilor, and as a secretary for mass mobilisation at the LC5 level.She told Human Rights Watch that in some instances, women would have to appeal to a higher court despite winning their cases, because the court officers were reluctant to enforce their judgments against the husbands. "Those LC courts are not generally useful to woman as far as violence is concerned.Some try their best . . . [but] even where a woman wins she has to appeal.Have you ever seen anyone winning and appealing because there's nobody to enforce her judgments?"[381]

Interviews with women and NGOs revealed that LCs were comparatively better at dealing with property and maintenance complaints, and some women who had been evicted from their homes had been able to obtain some relief by applying to the courts.However, the arrangements were not formalized, and in some cases husbands later demanded reimbursement or the return of property.The punishments imposed can also be inadequate.The LCs have the power to impose fines and often rely on shaming the perpetrator.Wanyama told us: "If people don't adhere to rulings we can impose fines or expose him to the whole village. . . . It's embarrassing so they try to adhere.The cash fines do not exceed UShs5000 (U.S.$2.54).At times we might make them do community service.The whole village will know it's because of domestic violence."[382]Statutory oversight is also lacking.The Local Council Courts Bill 2001 currently provides for the strengthening of the LC courts through enlarged civil jurisdiction, improved monitoring by the judiciary, and increased capacity building.[383]Officials from the Ministry of Local Government said women are "on the agenda" and that they intended to issue circulars to local government to indicate how to integrate HIV/AIDS and to attempt to sensitize the courts on the treatment of women whose husbands have died of AIDS.They also intended to produce guidelines for the LCs on how to handle cases and to provide donor-funded training that would include a gender component.[384]Draft guidelines provided to Human Rights Watch did incorporate a focus on human rights and instruction on the handling of gender-sensitive cases.[385]

The Courts

In January 2000, Kooky Sharma, a Kampala businessman, was sentenced to death for the high-profile 1997 murder of his wife, Renu Joshi, by inflicting electric burns and blunt injuries all over her body.[386] On April 15, 2002, the Supreme Court upheld the verdict.[387]Simon Byabakama-Mugenyi, the prosecutor in the case, told Human Rights Watch that public protest and the support of women's groups ensured the full prosecution of the defendant.He also pointed out that there was no complainant to withdraw the charge.[388]

Aside from a few convictions in particularly heinous cases, few complaints of domestic violence reach the courts. Byabakama-Mugenyi told Human Rights Watch: "We get some cases of domestic violence.Certainly not many.From my experience the cases are hardly prosecuted. [You'd] be lucky if the man is charged in court in the first place.Prosecution hardly happens."[389]He stated that few cases of domestic violence are reported at all: "The majority of domestic violence cases go unreported.What is reported I think is less than 10 percent," and pointed out that the vice-president herself had failed to report the matter to the police."She herself never reported to the police.This is an indication of unreported domestic violence matters."[390] The interviews revealed a mixed reaction on the courts' response to domestic violence.Byabakama-Mugenyi argued that the problem occurs in the investigation stage and that it is rare that men are even charged for spousal abuse.He asserted that the courts treat cases of domestic violence fairly and that the Directorate of Public Prosecutions is eager to prosecute such complaints: "If we get the evidence and we are not hindered we pursue cases of domestic violence with all the vigor they deserve.We will send a message to perpetrators of domestic violence that the law will not handle them with kid gloves."[391]Martha Nanjobe of the Legal Aid Project agreed: "My perception of the courts would be that they would be bound to respect the rights of victims but there is a problem with the matter getting to court.Men chase their cases vigilantly."[392] However, lawyer Maureen Owor described the judiciary's attitude towards domestic cases as "very negative."[393]In 1999, the Ministry of Gender found: "Despite the efforts to be impartial and objective, members of the judiciary are affected by societal-based prejudices and stereotypes with regard to property ownership, standards of proof in criminal cases especially relating to sexual offences or violation of the person such as rape, defilement and domestic violence."[394]

Women's Limited Access to Justice

Numerous factors combine to limit women's access to justice.A lack of access to formal education, limited legal literacy, and a lack of familiarity with English (the language of the courts), make court navigation difficult.Women's low economic status often makes it impossible for them to meet court expenses, while nepotism and corruption in the courts favors their more economically powerful husbands.In the first half of 1998, a National Integrity Survey examined the Ugandan people's experiences with and perceptions of corruption in public services.In 2000, two-thirds (63 percent) of service users stated that they paid bribes to the police, and half (50 percent) paid bribes to the judiciary services.The average bribe paid to the judiciary service was Ushs106, 000 (U.S.$53.82).[395]

Women's lack of awareness of court and police procedures exacerbates the problem. Maureen Owor told Human Rights Watch:

It is also the expense of the court system.The women are illiterate and fearful.As soon as the woman goes to court she is imposed upon for money by the police and court clerks.It's supposed to be free.Nobody should ask you for money from the police station to where you record the statement, to the magistrates' decision.Anyone who does not have money cannot get through the system.It will jam at some point.The whole system can conspire against you just because you're poor.And our staff are very impatient with poor people.They say court is at 2 p.m. and when the woman comes they yell and say it was at 9 a.m.Or it is in court 5 and no one explained that there are five courts.The way the system is structured, it locks out the poor.[396]

Minister of Gender, Labor and Social Development Zoe Bakoku Bakoru asserted that Ugandan women's legal awareness was high and that there had been a significant increase in women's use of the courts.[397]However, Human Rights Watch interviews revealed that many women did not see the justice system as a viable option for addressing issues such as domestic violence.Annette Tendo, program and advocacy officer at FIDA, told us that domestic violence cases were rare, and that most clients only came to them for help in obtaining maintenance, despite having been physically assaulted by their husbands.[398] Martha Nanjobe of the Legal Aid Project agreed, saying that many women were not even aware that domestic violence was an offence.[399]Simon Byabakama-Mugenyi said of the Directorate of Public Prosecutions, "Many people don't even know this office exists."[400]

Lawyers interviewed by Human Rights Watch explained that many cases were lost at the outset because women relied on their husbands for money and permission to travel.Martha Nanjobe recounted the difficulties for women in accessing their services: "Our branch in Jinja covers more than ten districts.There is one advocate and one volunteer.[The area from Jinja] up to Mbale [is covered] by one office.Women from Mbale cannot run to Jinja!The legal officer leaves the office to go to another district.Clients find the office empty.People can walk seventy kilometers to get to it."[401]She argued: "We need clinics at the district level.This must involve the government.This is their problem.The least they can do is partner with people providing the services.At least provide the infrastructure.NGOs cannot do it alone. . . . People need access to justice at the outset.Appeals are difficult if a case has not already been established.It is needed from the police stage up.That is where a lot of cases fail."[402]

The constitution mandates the Uganda Human Rights Commission to generate awareness of constitutional provisions.[403]The LRC also has a legal education component that is under-utilized.[404]Yet NGOs providing free legal representation to impoverished women experienced overwhelming demand. Nanjobe argued that the government was failing to support legal aid: "The Legal Aid Project is donor funded.It is time for the government to support legal aid.The government has a scheme, the 'State Brief Scheme' under the constitution.This avails a person charged with a capital offence to have a state funded lawyer.The State feels that its responsibility ends there, but it should not."[405]

Lack of Protective Services and Restricted Access to Health Services

Human Rights Watch could only confirm the existence of one functioning shelter in Kampala run by the Women and Children's Crisis Centre.Lack of funding hampered the ability of even that facility to provide long-term shelter. Executive Director Dr. Josephine Kasolo told Human Rights Watch that the number of women seeking refuge rose with publicity, and that they sheltered about ten women a week for a maximum of five days.[406]Isma Tamale, LC1 councilor, told us: "If the woman is in real danger we take them straight to the police.They have to settle the matter.There are no shelters for women to go to.What happens [is that] we let them sleep at any LC person's house.Shelters would be good."[407]

Economic constraints are an obstacle to obtaining medical evidence to support domestic violence allegations.In principle, outpatient health care at government clinics is free;[408] numerous NGO representatives reported that, in practice, women have to pay. A "National Integrity Survey" found that in 2000, more than a quarter of the respondents (28 percent) paid bribes for health services at an average amount of Ushs12,000 (U.S.$6.09).[409]In addition, hospitals charge high fees for physical examinations that most women cannot afford.The police surgeon is based in Kampala, which is often too far and too expensive for many women to reach.There is also an official fee for the forensic examination. In 1999, the Ministry of Gender observed: "Women are less able than men to use health services, even when these are available.Although the actual costs (including fees, drugs, transport and under the table charges) affect everyone, women have less access to money than men.Lack of money for transport is often the reason why women do not seek health services or do not go for further treatment."[410]

The management of domestic violence cases in hospitals is flawed.Dr. Hafsa Lukwata of the Association of Uganda Women Medical Doctors reported that hospitals are failing to take comprehensive social histories, and, where they do, are only taking histories of admitted patients, whereas most domestic violence victims come in on an outpatient basis.[411] According to Dr. Lukwata, victims are usually treated and sent home without any further action being taken and there is no automatic reporting to the police. Dan Kaye at the Department of Obstetrics and Gynaecology, Makerere University Medical School, told Human Rights Watch: "We see people with injuries again and again, we just treat, we don't ask."[412]Dr. Lukwata attributed this to a lack of resources: "Reporting of domestic violence cases to the police is not done and because [hospitals are] so understaffed and low on resources it would be a real obstacle.A lot of medical personnel in the rural areas . . . are a lower cadre of medical officer and don't have the requisite training."[413]

HIV/AIDS Services

Interviews with HIV-positive women, the Uganda AIDS Commission, and Ministry of Health representatives indicated that the costs of HIV/AIDS testing are problematic for most people, and are a particular impediment for economically subordinate women.Many women we spoke to who managed to access HIV/AIDS services were either not on medication or took medicines such as paracetemol (for headaches) and chloroquine (for malaria). The AIDS Information Centre, which charges UShs4000 (U.S.$2.03) at their clinic in Kampala, revealed that when they offer free services the response is overwhelming.[414]

Although government hospitals provided free medication to people living with HIV/AIDS, some women told Human Rights Watch that some hospitals required them to pay a fee.Mbakile told us: "I take panadol and chloroquin.I get them from the hospital.I have to pay.We pay someone who writes the card for you - UShs1000 (U.S.$0.50).He charges UShs300 (U.S.$0.15) for the injections.He does not give us the injections.That is the medical assistant.There is no receipt.This is at Iganga Hospital.We know the hospital has no medicine so if you want to get better you give the money."[415]

Access to HIV testing was problematic. Dr. Ndyanabangi at the Ministry of Health told Human Rights Watch that beginning in 2002, the Voluntary Counseling and Testing service was expanded to become universal precisely because it was not easily accessible to rural women.[448] Unchecked domestic violence and a female population unable to access HIV/AIDS services are clear indications that the government is failing to meet its responsibilities.

The Committee on the Elimination of Discrimination against Women, (the CEDAW Committee)has established that violence against women violates the principle of nondiscrimination and equality enumerated in the Convention,[449] which states: "The term 'discrimination against women' shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field."[450]A state's responsibility to protect women from nondiscrimination extends to ensuring "that public authorities and institutions shall act in conformity with this obligation,"[451] and taking "all appropriate measures to eliminate discrimination against women by any person, organization or enterprise."[452] CEDAW requires states to take "all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women."[453]Discriminatory marriage and divorce laws, unequal property and inheritance rights, and the unequal treatment of women within the justice system violate the principle of nondiscrimination.

International human rights law recognizes state accountability for abuses by private actors and requires states to show due diligence in preventing and responding to human rights violations. In General Recommendation 19, the CEDAW Committee emphasized: "States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence."[454] The 1988 Velsquez-Rodrguez case before the Inter-American Court of Human Rights articulated this principle: "An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention."[455]The court determined that a state must take "reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation."[456]

The due diligence requirement extends to a government's responsibility to address violence against women.In her first report, the U.N. Special Rapporteur on violence against women, its causes and consequences (the Special Rapporteur) emphasized: "In the context of norms recently established by the international community, a State that does not act against crimes of violence against women is as guilty as the perpetrators. States are under a positive duty to prevent, investigate and punish crimes associated with violence against women."[457]This duty goes beyond the enactment of laws prohibiting domestic violence.The Special Rapporteur has noted: "States must find other complementary mechanisms to prevent domestic violence. Thus, if education, dismantling of institutional violence, demystifying domestic violence, training of State personnel, the funding of shelters and other direct services for victim-survivors and the systematic documentation of all incidents of domestic violence are found to be effective tools in preventing domestic violence and protecting women's human rights, all become obligations which the State must exercise due diligence in carrying out. The due diligence standard is not limited to legislation or criminalization."[458]The United Nations Declaration on the Elimination of Violence against Women also calls on States to exercise due diligence to investigate and punish acts of violence against women, whether committed by the State or by private actors.[459] A state's consistent failure to do so amounts to unequal and discriminatory treatment, and constitutes a violation of the state's obligation to guarantee women equal protection of the law.[460]

CEDAW explicitly acknowledges social and cultural norms as the sources of many women's rights abuses, and obliges governments to take appropriate measures to address such abuses. Article 5(a) of CEDAW obliges states to "modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women."The ICCPR also provides that "everyone shall have the right to recognition everywhere as a person before the law."[461]The U.N. Human Rights Committee, the body that monitors compliance with the ICCPR, has interpreted this to prohibit the treatment of women "as objects to be given together with the property of the deceased husband to his family,"[462] which clearly proscribes the practice of widow inheritance.The argument that some practices are cultural norms and hence impervious to alteration cannot justify a state's failure to address discriminatory practices.The Human Rights Committee affirms, "States parties should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women's right to equality before the law and to equal enjoyment of all Covenant rights."[463]The Ugandan government has done little or nothing to prohibit such widespread practices as widow inheritance and the payment of bride price, nor has it addressed customary law and practices that inhibit women's full realization of their rights to property ownership.

Human rights law also requires that governments address the legal and social subordination women face in their families and marriages. Article 16(1) of CEDAW provides, "States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations."In particular, states are required to afford to women the right to enter into marriage only with their free and full consent,[464] equal rights with their spouses in marriage and during any separation or divorce,[465] equal parental rights and responsibilities,[466] equal rights with regard to the number and spacing of their children,[467] and equal rights of "ownership, acquisition, management, administration, enjoyment and disposition of property."[468]The Human Rights Committee has said: "It should also be noted that equality of treatment with regard to the right to marry implies that polygamy is incompatible with this principle.Polygamy violates the dignity of women.It is an inadmissible discrimination against women.Consequently, it should be definitely abolished wherever it continues to exist."[469]Women in Uganda contend with discriminatory marriage and divorce laws, unequal rights with respect to owning, acquiring, and disposing of property, and limitations on their rights over their own children.[470]The Ugandan government maintains the legality of polygynous unions and ignores the coercive nature of widow inheritance, which clearly conflicts with the right of women to enter into marriage only with free and full consent.

Numerous treaties and international treaty bodies acknowledge women's equal property and inheritance rights.The CEDAW Committee has stated: "There are many countries where the law and practice concerning inheritance and property result in serious discrimination against women. . . . Often inheritance rights for widows do not reflect the principles of equal ownership of property acquired during marriage.Such provisions contravene the Convention and should be abolished."[471]The right to property is guaranteed under article 14 of the African Charter on Human and Peoples' Rights (African Charter). The Universal Declaration of Human Rights, widely regarded as customary international law, provides, "Everyone has the right to own property alone as well as in association with others."[472] The Human Rights Committee declares that women should have equal inheritance rights to those of men upon the death of the spouse.[473]Discriminatory property and inheritance rights under both statutory and customary law and the state's failure to protect women from eviction and the theft of their property have been demonstrated to be widespread in Uganda.

The presumption of consent to sex in marriage is contrary to international understanding of sexual rights and bodily autonomy.Both the International Conference on Population and Development (ICPD) Programme of Action 1 and the Beijing Platform for Action 2 reflect an international consensus recognizing the inalienable nature of sexual rights.Paragraph 96 of the Fourth World Conference on Women Platform for Action states, "The human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence."[474]According to the Committee on Economic, Social and Cultural Rights[475] (ESCR Committee), the right to health includes the right to control one's body and embraces sexual and reproductive freedom.[476]International protections for the right of women to have autonomy over their sexuality can also be found in the principle of bodily integrity enumerated in the ICCPR that provides for the right to liberty and security of the person.[477]

Article 12 of the ICESCR provides for the right of everyone to the enjoyment of "the highest attainable standard of physical and mental health."[478]This right imposes an obligation on states to take steps necessary for "the prevention, treatment and control of epidemic, endemic, occupational and other diseases,"[479] and for "the creation of conditions which would assure to all medical service and medical attention in the event of sickness."[480]Article 12 of the ICESCR also provides for the right to prevention, treatment, and control of diseases.[481] The committee has interpreted this to mean that states are required to promote "social determinants of good health, such as . . . gender equity."[482]The ESCR Committee recommends "that States integrate a gender perspective in their health-related policies, planning, programmes and research in order to promote better health for both women and men. A gender-based approach recognizes that biological and socio-cultural factors play a significant role in influencing the health of men and women."[483]The committee has specifically highlighted protecting women from domestic violence as "a major goal" in reducing women's health risks,[484] and states, "It is also important to undertake preventive, promotive and remedial action to shield women from the impact of harmful traditional cultural practices and norms that deny them their full reproductive rights."CEDAW provides a particular obligation to eliminate discrimination against women in the rural areas, in order to ensure that they benefit from, among other things, access to adequate health care facilities.[485]

The fact that the right to the highest attainable standard of health outlined in the ICESCR requires only "progressive realization," does not absolve states from having a "specific and continuing obligation to move as expeditiously and effectively as possible toward the full realization of [the right]."[486]States are required to promote and support institutions providing counseling services; provide information campaigns, including with respect to HIV/AIDS and domestic violence;[487] train health care staff to respond to the specific needs of marginalized groups; and disseminate information on harmful traditional practices.[488]According to the CESCR Committee, the failure to prosecute perpetrators of domestic violence, to discourage harmful traditional practices both in law and in fact, and to adopt a gender-sensitive approach to health, amount to violations of a state's obligations under CEDAW.[489]

The CEDAW Committee recommends that States "intensify efforts in disseminating information to increase public awareness of the risk of HIV infection and AIDS, especially in women and children, and of its effects on them."[490]The Committee further recommends that HIV/AIDS programs "give special attention to the rights and needs of women and children, and to the factors relating to the reproductive role of women and their subordinate position in some societies which make them especially vulnerable to HIV infection."[491]The HIV/AIDS and Human Rights: International Guidelines, issued in 1998 by the Office of the U.N. High Commissioner for Human Rights and UNAIDS, highlight the need for legislation addressing discrimination and violence against women including harmful traditional practices.[492]The 2001 U.N. General Assembly Special Session (UNGASS) Declaration of Commitment on HIV/AIDS emphasized the need to integrate the rights of women and girls into the global struggle against HIV/AIDS.[493]