Religious leaders, lawyers, and social critics have come out heavily to slam pastor Bugingo over his views on bigamy.
They were reacting to him when he appealed to the law.
Through Ronald Ruhinda, his lawyer, Pastor Bugingo argues that the laws under which he is being charged ‘are not only outdated, draconian, rational but also illegal in the current modern contemporary constitutional order’.
Bugingo is being charged with contracting a marriage by customary law when already married under the Marriage Act contrary to section 50 of the Marriage Act and an alternative charge of bigamy contrary to section 153 of the Penal Code Act.
Makula, on the other hand, is being charged with the offense of marriage with a person previously married, contrary to section 42 of the marriage Act.
Ruhinda stated 21 grounds for their application to have the matter referred to the Constitutional Court for interpretation.
The grounds show that the available laws violate the rights of their clients.
“The inherent right to choose whom to marry is generalized to give an individual autonomous right to enter a bigamous marriage.
As such, the criminalization and non-recognition of bigamous marriages interfere with the free exercise of choice of a marriage partner and the right to marry and found a family,” Bugingo’s lawyer stated.
Bugingo said the laws contravene the right to equality before the law without discrimination and the right to privacy guaranteed, contrary to national objectives and directive principles of state policy III.
Bugingo’s lawyers argue that the laws under which he (Bugingo) and Makula are being charged, create offenses that are not criminally actionable amongst the Hindus, Muslims, and those that contract customary marriages.
“To this far, the offenses are discriminatory and contravene national objective and directive principles of state policy,” Ruhinda added, among other grounds.
Timothy Amerit and Lamla Ddamba, representing the Director of Public Prosecutions (DPP) sought an adjournment to reply to the application.
The prosecution side, led by Amerit, had presented fi ve witnesses to testify in the case. The witnesses included Teddy Naluswa, Bugingo’s wife, Robert Rutaro, who had also initiated a private prosecution against Bugingo, among other officials from the Police and the Uganda Communication Commission.
The magistrate asked the witnesses to halt testifying until the filed applications are disposed of.
Mabirizi application dismissed
Stella Okwong Paculal, the Entebbe Grade One Magistrate, dismissed an application that had earlier been filed by lawyer Male Mabirizi, asking for a stay of proceedings, pending an application he filed in the High Court, about the same matter.
Mabirizi applied to the High Court, seeking to have his prosecutorial powers reinstated after the DPP took over the matter.
After the application was ruled against yesterday, Mabirizi filed another oral application against the same ruling, stating the concern of multiple proceedings of a similar dispute both in a Magistrates’ Court and the High Court.
“The ruling also raised another matter of who takes the precedent in a criminal trial. Is it the complainant or the state,” Mabirizi wondered?
The magistrate adjourned the court to July 1st, 2022, when she will give her ruling on Mabirizi’s new application and also listen new to the DPP’s reply to Pastor Buingo’s lawyers, who applied for a referral of the matter.
Lawyers and religious leaders have reacted to Pastor Aloysius Bugingo’s move to have the law on bigamy repealed, saying the law is not outdated.
A group of lawyers New vision spoke to about Bugingo;s attempt to challenge the law on bigamy and said much as it is his right to petition the court, his move is misguided and far-fetched.
Bugingo who is charged with bigamy at Entebbe chief Magistrates’ Court is challenging section 153 of the penal code.
Last week, Pastor Bugingo of House of Prayer Ministries through his lawyer Ronald Ruhinda asked the court, presided over by Stella Okwong Pacula, to refer the case to the Constitutional Court for interpretation. Magistrate Paculal is yet to rule whether the case should be referred to the Constitutional Court or not.
Bugingo argued that the law under which he is charged is obsolete and draconian in nature. He said the law violates his rights.
“The inherent right to choose whom to marry is generalized to give an individual autonomous right to enter a bigamous marriage. As such, the criminalization and non-recognition of bigamous marriages interfere with the free exercise of choice of marriage partner and right to marry and find a family,” Bugingo’s lawyer stated.
Reacting to Bugingo’s petition Robina Rwakoojo, the MP representing Gomba West county, said if Bugingo wanted to marry many wives he should have stuck to customary marriage.
Rwakoojo, who is the outgoing chairperson of the legal and parliamentary affairs committee, said once someone has contracted a church marriage it is blinding until death.
She said customary marriage gives one leverage to marry as many wives as one can, so long as they can stick to that particular custom.
As a legislator and a lawyer, Rwakoojo said there was nothing with section 153 of the penal code.
A person convicted under this section is liable to five years in jail.
While commenting on the petition, Pastor Trust Nongo of Victory City, said challenging the law of bigamy is equivalent to contesting biblical theology.
“As a Bible teacher and Christian marriage counselor, I find the law prohibiting bigamy in Uganda consistent with the principles on marriage in the Bible and so anyone who wants to challenge the law on bigamy as a Christian, he or she would be challenging the Bible and this would be absurd. The Bible indicates in any marriage there are two people involved, a man and a woman, not three or four,” Nongo said.
Lawyer Nogan Arnold Kimara said where a matter in court involves a criminal offense, the issue of constitutional interpretation does not arise.
Kimara said otherwise all those accused of criminal offenses including murder, theft, and aggravated robbery, among others, would apply to the Constitutional Court for interpretation. He said a case can only be referred to the Constitutional or whether any provisions of the law are inconsistent with the constitution.
“Where someone is charged with committing a crime, three is no question for constitutional interpretation because the laws of Uganda prescribed rights which are supposed to be enjoyed by people but the constitution does not facilitate the commissioning of a crime under the excuse of enjoying constitutional rights,” Kimara said.
Kimara, however, said if a person’s human rights are violated in the process in the process of being charged with a crime, the aggrieved person can seek remedies under the Human Rights (Enforcement) Act, 2019, where someone is tortured under detention.
Luyimbazi Nalukoola, another lawyer, said if someone is aggrieved, he has the right to petition the Constitutional Court in the course of the proceedings in the lower court for constitutional interpretation.
However, he said it is a paradox for a pastor or Christian to take such a decision because it contradicts biblical teachings.
Lawyer Ssali Senkeezi, explained that bigamy does not stop anyone from choosing a partner, but faults a man or woman from there is subsisting one.
“He is misleading himself or being misguided,” Senkeezi said. He said Bugingo was trying to find a way of allegedly derailing the case, Ssali said the case does not warrant constitutional interpretation.