Garnishee Proceedings

GARNISHEE PROCEEDINGS/ATTACHMENT OF DEBTS

This is the process by means of which a judgment creditor is enabled to reach money due to the judgment debtor which is in the hands of a third person. The third person in whose hands the money from which is sought to be attached is called Garnishee and the necessary order is called the Garnishee order.
The Garnishee order changes the obligation, of the third party to pay the judgment debtor into an obligation to pay the judgment creditor directly.

When may garnishee proceedings be instituted?

They may be instituted by any person who has obtained a judgment or order for recovery or payment of money, by an assignee of a judgment debt or by representatives of the deceased judgment creditor who have been made parties to the action in which the judgment or order in question has been given or made.
It is important to note that only those debts owed by a third party to the judgment debtor can be attached under garnishee proceedings as was noted in the case of East African Airways V Lewis, in this case court held that only gratuity payable to an expatriate contract officer which was debt owing could be attached. It was also stated that it is not necessary that such debt is immediately payable
It is henceforth necessary to note that where an existing debt is payable by future instalments, the Garnishee order may be made to become operative on and when each instalment becomes due.
Similarly, money in hands of the Bank is attachable by Garnishee and the Bank has to show cause why the order nisi should not be made absolute by claiming a lien over the money in its possession.

Procedure

The Civil Procedure Rules SI 71-1 provide that Garnishee proceedings are commenced by way of application for an order for attachment of a debt which is made ex parte and served within 7 days onto the judgment debtor and the Garnishee. The application is made by Chamber Summons accompanied with a supporting affidavit of the decree holder or his/her advocate which must state the following;
The name and address of the Judgment debtor
Identify the judgment to be effected giving the amount remaining unpaid.
State to the best of information or belief of deponent is within jurisdiction and is indebted to the judgment debtor and address garnishee is a deposit taking institution having more than one place of business, give the name and address of the branch at which the judgment debtors account is believed to be held; the account number and if any information is not known to the deponent, it should be stated.  

The order made by the court (order nisi) will be made against the third person and the court will order that all debts owing or accruing from the garnishee to the judgment debtor be attached. Accordingly court may make a subsequent order that the garnishee appears before the court to show cause why he or she should not pay the debt to the decree holder or so much of it as is sufficient to satisfy the claim.
In the event that a decree nisi is granted, it is served on the garnishee and judgment debtor unless otherwise ordered within seven days. Service on the judgment debtor may be made either at the address of service if given by the debtor, on his/her advocates, leaving the order at his/her usual residence or place of business or such other manner as the court may direct.

Effects of the order

It is important to note that there is no attachment of the debt until service of the order nisi has been done.
If the Garnishee Bonafide pays to the judgment debtor the amount of debt before service, the order nisi is then absolute. This is due to the fact that in such a circumstance there is no longer any debt to which it can attach.
The service of the order nisi creates an equitable charge and the garnishee cannot pay the debt to anybody without incurring the risk of having to pay it again.

Order Absolute

Court has the discretion whether the decree nisi should be made absolute. In exercising its discretion, it must take into account other creditors as far as they are known to court. And before an order nisi is made absolute, there must be a debt presenti.
In the event of a Garnishee order the judgment creditor is placed in the same position as an assignee of the judgment debtor and will make him subject to the equities, which exist against the debtor. The garnishee may also obtain execution if the money is not paid in accordance with the order absolute.

Negotiated Agreement

DR. RICHARD SINGSON
Members/the negotiating team
Director:  Catherine/Asingwire.
Human resource manager: Mr. Benoit
Expert in health management system: Mr. Theophile
Marketing officer: Madam Janne
Legal Advisor: Jean de Dieu
Interests of the parties
Shared interests.
Professional success
Making money
Safety and security of the parties
Interest in staying in the same town.
DR. SINGSONs interests
Keeping the doctor WHITTAMORE in the clinic
Enforcing the non-competition clause to the contract.
keeping clients
Enforcement of the penalty clause that is 100% of the remaining two years on the employment contract.
Maintaining daily revenues.

Team for DR. WHITTAMORE
Mr. Whittamore (Pediatrician)
Dentist (Robert)
Pharmacist (Prosecutor Janvier)
Whittamores Lawyer (Prosecutor Minani)
Chemist (Judge Felisie)
Interests of the parties
Shared
Professional success
Earning a living
Safety and security
Operating and staying in the same town
Whittamore
Leaving Fairview clinic
Opening a competing business in the same town
Non enforcement of non-competition clause
Non enforcement of penalty of 100%
Leaving for the benefit of the clinic
Living with the children
Opposed interests
Fairview
Keeping Whittamore at the clinic
Enforcement of non-competition clause
Maintaining patients/clients
Enforcement of penalty of 100% for breach of contract
Maintaining daily revenues
Whittamore
Leaving Fairview clinic
Opening a competing business in the same town
Non enforcement of non-competition clause
Non enforcement of penalty of 100%
Leaving for the benefit of the clinic
Living with the children
Options for Mutual gains
Mr. Whittamore suggested leaving Fairview and open up another clinic in the same town, however Singson stated that opening up the clinic would lead to breach of contract which attracts penalties as provided there in. However, both parties agreed that for the benefit of maintaining a good relationship they can become share holders in the same new clinic opened such that the interests of both parties are catered for.

NEGOTIATION AGREEMENT
This agreement is made on the 3rd day of April, 2015 by Dr. Andrew Whittamore an employee (Pediatrician) at Fairview Clinic and Dr. Richard Singson the owner of the clinic
Whereas Dr. Andrew Whittamore and Dr. Richard Singson are in conflict of interests
Whereas Dr. Andrew Whittamore wants to leave Fairview clinic before the expiration of his contract and establish his own private medical clinic in the same town
Whereas Dr. Richard Singson wants to keep Dr. Andrew Whittamore at his clinic due to the none competition clause in his employment contract
Whereas Dr. Richard Singson desires to enforce a 100% penalty for breach of contract as per the employment contract
Article 1
Dr. Andrew Whittamore was supposed to work for Dr. Richard Singson at Fairview clinic for a payment (salary) on monthly basis.
Article 2
Dr. Andrew Whittamore is allowed to leave Fairview clinic and establish the same business in the same town
Dr. Richard Singson is entitled to invest 50% shares in the new business (clinic) opened by Dr. Andrew Whittamore
No penalty as earlier agreed in the contract of employment will be enforced on Dr. Andrew Whittamore by Dr. Richard Singson for leave of the clinic before expiry of the contract
Dr. Andrew Whittamore and Dr. Richard Singson will manage the new clinic as a joint venture
Dr. Andrew Whittamore is free to live in the same town and look after his children
Dr. Andrew Whittamore and Dr. Richard Singson must receive profits from the new clinic in equal shares annually
Article 3
Dr. Richard Singson must not enforce the none competition clause against Dr. Andrew Whittamore
Dr. Richard Singson must not enforce the 100% penalty on Dr. Whittamore when he leaves the clinic before the expiration of his contract of employment
Dr. Richard Singson must pay 50% start capital of 100,000,000 million Rwandan Francs equal to 50,000,000 million Rwandan Francs within 6 months starting from the date of signature
Dr. Andrew Whittamore pay 50% start capital of 100,000,000 million Rwandan Francs equal  to 50,000,000 million Rwandan Francs within 6 months starting from the date of signature
Failure to pay the start capital in time will lead loss of all rights as a share holder
Dr. Andrew Whittamore must make sure that the conflict between him and his wife does not affect the new business
Dr. Andrew Whittamore must help Fairview clinic in finding another pediatrician to replace him.
Article 4
Both parties must observe the terms of this agreement and in case of any breach the dispute will be settled in mediation
In case of a dispute arising out of this agreement each party must appoint one (1), a qualified doctor of 10 years standing to act as a mediator.
In case the mediation fails the parties must refer the dispute to court
Article 5
This agreement is governed by Rwandan Law
Article 6
The original/genuine version of this agreement is in English

SIGNED by the parties on the 6th day of April 2015

……………………………….                                                          ……………………………….
Dr. Andrew Whittamore  Pediatrician                 Dr. Richard Singson  Owner of Fairview

ADR agreements

Introduction
ADR is the name used for different ways of solving a dispute. For example, mediation, arbitration, adjudication and ombudsmen are all types of ADR. In many circumstances they are alternatives to going to court – which is why they are sometimes known as ‘alternative dispute resolution’. Alternative dispute resolution (ADR) consists of a variety of approaches to early intervention and dispute resolution. Many of these approaches include the use of a neutral individual such as a mediator who can assist disputing parties in resolving their disagreements.
The main ADR alternatives to civil litigation are negotiation, arbitration, conciliation and mediation.  The increased popularity of ADR methods has been due to the overloading of cases in the normal courts of and the disputing parties use these ADR methods because they are expeditious, private, and generally much less expensive than a trial.

We will draw much emphasis on looking at the parties’ agreement before taking a decision to go for ADR and after when a final settlement also known as final agreement in ADR is reached.

Mediation Is a voluntary, private and nonbinding process in which a neutral person (the mediator) assists the parties to reach a negotiated settlement. The mediator’s role is more pro active than that of a conciliator but a mediator does not have power to make any decision or award. Mediation is sometimes referred to as assisted negotiation and it employs a problem-solving approach to address conflict rather than the traditional, adversarial method. Mediation allows parties to control the dispute resolution process, rather than having a judge or some other official control it for them. Mediators are not decision-makers or judges and have no personal interest in the substantive outcome of a case but rather use their expertise in communication and negotiation to help the parties make effective, informed decisions on their own.

Negotiation
Negotiation is the processes in which parties that perceive one or more incompatibilities between them, try to find a mutually acceptable solution.Negotiation therefore is characterized by voluntariness of the parties where no third party is involved in imposing the resolution or a party forced to participate. Negotiation can involve two, three or dozens of parties and is Non-adjudicative since it involves only the parties and the outcome of a negotiation is reached by the parties together without recourse to a third-party neutral.

Arbitration
Arbitration is a procedure applied by parties to the dispute requesting an arbitrator or a jury of arbitrators to settle a legal, contractual dispute or another related issue. Arbitration is characterized by voluntary participation of the parties with the presence of a third party who as a private judge imposes a resolution. Arbitrations often occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration. By employing arbitration, the parties lose their ability to participate directly in the process. In addition, parties in arbitration are confined by traditional legal remedies that do not encompass creative, innovative, or forward-looking solutions to business disputes.

Parties’ agreement before ADR
Since ADR is a private dispute settlement mechanism, parties are at free will to choose whether to settle a dispute through one of the methods of ADR. As a general rule, in all matters governed by arbitration, court shall not intervene except where the law provides. Which means that an arbitration agreement put in the parties’ contract is binding on them as it forms a contract. Article 64 provides that Contracts made in accordance with the law shall be binding between parties. They may only be revoked at the consent of the parties or for reasons based on law. They shall be performed in good faith. Similarly an agreement by parties to settle a dispute by mediation is binding on them until it fails then other forms of ADR or court can be involved.

Power to stay proceedings
Mediation and arbitration clauses are now regularly included in commercial contracts in Rwanda as the appropriate mechanism for resolving disputes. The clause usually stipulates that the parties will refer any dispute that arises out of the contract to either mediation or arbitration, where these processes do not result in a settlement the parties are still free to have court proceedings. However important to note is that in arbitration in Rwanda a party can only appeal on the procedural elements but rather not substantive elements of the dispute.

The court before which an action regarding an arbitration agreement is seized shall submit it to the arbitration, if a party so requests, before submitting his or her statements on the substance of the dispute, unless it finds that the agreement is null and void, inoperative or incapable of being performed. Where an action referred to has been brought in a court but before being heard, arbitral proceedings may nevertheless be commenced or continued, and a decision may be taken while the issue is pending before the court. In that case, the action submitted to the court shall be null and void. Similarly if parties had a mediation agreement in their contract courts can distance themselves from hearing such a dispute until a proper mediation process has been concluded.

Stay of proceedings and ADR Clauses
The enforceability of a dispute resolution clause was definitively established by the High Court in Health Service Executive v Keogh, trading as Keogh Software. In this case, the defendant had an extensive software services and maintenance contract with the plaintiff, the HSE, which was at the time of the case in use at approximately 180 sites around the State in connection with radiology, accident and emergency and hospital billing. A dispute arose between the parties, in which the defendant asserted that it had been underpaid by the HSE, and the defendant then ceased to supply the support staff for the software system. The HSE then requested the defendant to supply it with the computer source codes for the software system, which the defendant refused. A contract between the parties included a dispute resolution clause, under which the defendant agreed that the source code, which were held by a third party company, could be released to the HSE ―on the decision of an independent expert whose appointment will be mutually agreed, or, failing mutual agreement, who will be appointed by the President for the time being of the Law Society. The dispute resolution clause also provided that:

The independent expert‘s decision will be final and binding on all parties to this agreement and shall not be subject to appeal to a court in legal proceedings except in the case of manifest error.
Both parties applied to the High Court for interlocutory relief, the HSE seeking a mandatory injunction requiring the defendant to supply the support services contracted for, the defendant seeking to be paid the fees it claimed were owed and to have the dispute resolution clause and expert determination process suspended. Laffoy J stated, in applying the principles set out in the Via Networks case, that there was no reason for the parties to depart from the dispute resolution mechanism provided for in the agreement, and she refused all relief applied for by both parties. She noted that ―an examination of the... agreement clearly demonstrates that its terms are designed to facilitate speedy resolution of a dispute. In other words the principle in these two cases in as much as are English we would wish be instructive in submission, it is clearly stated that where parties agree to use any form of ADR for settlement of a dispute it shall be binding on them, neither party can depart from the earlier agreed settlement mechanism and this has also been the practice in Rwanda.

Severability of mediation and conciliation clauses
In relation to arbitration, the doctrine of severability means that even where the agreement containing an arbitration agreement is alleged to be invalid, the arbitration agreement itself can be valid and thus the question as to the validity or otherwise of the main agreement can be referred to arbitration. In Doyle v Irish National Insurance Co plc, Kelly J held that the arbitration clause survived the voidance of the contract and the defendant was, accordingly, entitled to have the dispute referred to arbitration.
The English Court of Appeal placed a limit on the doctrine of severability in the case of Soleimany v Soleimany in which it was decided that contracts for illegal adventures which are illegal or tainted in their very purpose (such as a contract of co-operation between highwaymen) could not be the subject of arbitration. However, the Court of Appeal in Fiona Trust & Holding Corporation & Ors v Yuri Privalov & Ors required the parties in this case to proceed to arbitration where one party to the contract containing that arbitration clause had purported to rescind the contract as a whole following allegations of bribery. It was held that if a contract were to be invalid for reasons such as bribery, unless that bribery relates specifically to the arbitration clause, the clause survives and the validity of the contract as a whole is to be determined by the arbitrators, not the court. In doing so, it stressed the severability of an agreement to arbitrate from the larger contract of which it was part.

Similarly in Rwanda as seen in Article 7 of law n°005/2008 of 14/02/2008 on arbitration and conciliation in commercial matters and Article 64 of LAW N°45/2011 OF 25/11/2011 GOVERNING CONTRACTS in Rwanda an arbitration agreement is binding on the parties and is not affected by the validity of the main contract itself. 

After ADR

The enforceability of outcomes is an important feature of dispute resolution processes. A decision of a court is legally binding and is enforceable by the parties to the dispute and enables the final resolution of a dispute. It is important to note that mediation and conciliation processes are not binding in themselves, but agreements reached through those processes can be made binding. For example, a mediated agreement can be in a binding contract, which can then be enforced in court. It has been argued that mediated agreements may prove to be longer lasting than imposed settlements, such as court orders, because the parties have voluntarily participated in drawing up the terms of the agreement and are, therefore, more likely to adhere to the terms of the agreement. Similarly in Rwanda mediation and negotiation final settlements/agreements are not binding on the parties and only become binding when the parties intend to make them so by way of signature hence making a contract.

In Rwanda, An arbitral award, irrespective of the country in which it was made, shall be recognized as binding. However, this shall not be respected if the country in which the award was issued does not respect the provisions with reference to cases decided in Rwanda. Similarly an interim measure issued by an arbitral tribunal shall be recognized as binding and, unless otherwise provided by the arbitral tribunal, enforced upon application to the competent court, irrespective of the country in which it was issued but subject to the conditions of reciprocity of the interim measures taken by arbitral tribunals in Rwanda.

Conclusion

All in all, mediation and negotiation agreement as forms of dispute settlement can be appealed in courts of law in Rwanda but Arbitration is not appealable and a dissatisfied party can only do so where there was gross violation of the arbitration procedures.

BIBLIOGRAPHY
Laws

LAW N° 005/2008 OF 14/02/2008 on Arbitration and Conciliation IN COMMERCIAL MATTERS in Rwanda
LAW N°45/2011 OF 25/11/2011 GOVERNING CONTRACTS in Rwanda
Health Service Executive v Keogh, trading as Keogh Software [2009] IEHC 419
Doyle v Irish National Insurance Co plc [1998] 1 I.R. 89
Fiona Trust & Holding Corporation & Ors v Yuri Privalov & Ors [2007] E.W.C.A. Civ. 20 (Court of Appeal, January 24, 2007]. See Carey New Guidance on the scope of arbitration clauses (2007) 14(4) CLP 72

Writings

Alternative Dispute Resolution Leaflet, written by  Margaret Doyle published by Advice Services Alliance, June 2012 (http://asauk.org.uk/wp-content/uploads/2013/08/Why-use-ADR.pdf)
Alternate Dispute Resolution Handbook at pg.1 (http://www.opm.gov/policy-data-oversight/employee-relations/employee-rights-appeals/alternative-dispute-resolution/handbook.pdf)
http://www.mediate.com/articles/sgubinia2.cfm
Dispute resolution guide by KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP, 2005 (http://www.klgates.com/files/Publication/d4e79514-1038-414f-8394 7c2c22272645/Presentation/PublicationAttachment/2b825492-c6d1-46d6-b2db 7f913295536a/Dispute_Resolution.pdf
http://www.lawreform.ie/_fileupload/consultation%20papers/cpadr.pdf
http://www.cs.uu.nl/docs/vakken/vm/college9.pdf
http://assets.cambridge.org/97805217/35216/excerpt/9780521735216_excerpt.pdf

Alternative Dispute Resolution

What is ADR?
ADR is the name used for different ways of solving a dispute. For example, mediation, arbitration, adjudication and ombudsmen are all types of ADR. In many circumstances they are alternatives to going to court – which is why they are sometimes known as ‘alternative dispute resolution’. Alternative dispute resolution (ADR) consists of a variety of approaches to early intervention and dispute resolution. Many of these approaches include the use of a neutral individual such as a mediator who can assist disputing parties in resolving their disagreements.

Advantages for using ADR

It is cheaper
Mediators will commonly claim that mediation is cheaper than going to court. Mediation can be much cheaper than taking legal action as it does not require filing fees in order for a dispute to be lodged like in court where filing fees is a must.

Quicker
Some forms of ADR can be quicker than going to court. If you are involved in a small claim in court, for example, your case can go to mediation sooner than a hearing can be arranged. ADR processes do not follow strict rules of civil procedure and this helps the parties to settle disputes urgently.

Not adversarial
Going to court can risk making a bad situation worse. That’s because the legal system is adversarial – it puts one side against the other, and at the end there is a winner and a loser.
Using ADR like in mediation, where you talk to each other to find a solution you can both live with, can help preserve an ongoing relationship.

Getting what you want
There is a much wider range of outcomes with ADR than with courts. Mediation and Negotiation may well be more appropriate than court if what you want is an apology, an explanation, or a change in policy or practice by an organisation.

Flexibility
ADR processes are usually more flexible than the court process. Mediators will usually bring both parties together for a face-to-face discussion. However in negotiation, parties will try to negotiate a deal through a series of phone calls. In ADR like negotiation it is by parties’ choice of preference in sorting out a problem either by phone, through letters or emails, or face to face. Whereas court system follows strict rules of procedure that are brought in force by law and cannot be avoided save for circumstances where they have been amended.

Longer lasting
When it works, mediation and negotiation can produce a solution that satisfies both sides. Mediators encourage people in dispute to have creative discussions about a range of options. Rather than just aiming for an acceptable compromise, they will try to end up with an agreement which reflects the best possible outcome for all involved. This can have an effect on what happens afterwards. Research indicates that agreements reached through mediation are more likely to work out in practice, and to last longer, than those imposed by a court.
Confidentiality
Since ADR is a private settlement mechanism and is not done in open the dispute at hand remains private and is not published in public domains like in court system that can be open. This has helped in the protection of the image of investors in commercial matters in Rwanda.

Disadvantages for using ADR
There are some situations when ADR may not be appropriate, and may even be risky for one of the parties. It is a good idea to get some independent legal advice about this. It is important for solicitors and legal advisers to use their professional judgement in each case, but these are some of the factors you should think about:
Power differences
There may be an imbalance of power between the parties, which could make face-to-face ADR unfair. For example, mediation between an individual and a large organisation such as a local authority or company where the size and resources of the organisation could put the individual at a disadvantage, this doesn’t always mean that mediation is inappropriate, but it’s something to consider.
Urgency
There may be an urgent need (for example if you are threatened with being evicted or losing your home) which requires an immediate legal remedy. ADR does not give interim remedies like injunctions and hence forth party can lose his property in continued violation of his rights even during settlement of dispute in ADR and requires court intervention to stop such violation.
Reluctant opponent
ADR requires both parties to be willing to give it a try, so if the other side is not willing to participate, you might need to go to court instead. The unwillingness to participate delays the process of effective settlement of disputes, because ADR does not have compelling measures to bring by force parties who are not compliant.
No precedent
Agreements reached in mediation do not act as precedents in future cases. They are usually private and confidential.
If you need to establish a legal point that other people can rely on, you may need to go to court.

No ruling on legal rights and entitlements
You cannot get a ruling on your legal rights, including discrimination and human rights, in ADR processes. You can still resolve a dispute about these issues, but you won’t get a decision about whether or not the law has been broken.

Lower compensation amounts
Although arbitrators can make compensation awards, they are often lower than is likely to be achieved in court. Research shows that in arbitration of small claims cases, settlement amounts tend to be lower than amounts claimed. If you need a significant sum of money in compensation, then you might get a higher award through the court.
Binding decisions
Arbitration, and often adjudication, are processes that result in legally binding decisions. This means that you cannot reject the decision if you don’t like it, and you can’t take the claim to court instead. Arbitration in Rwanda can only be appealed on procedural grounds but rather not the substantive elements of the settlement.
Quality control
There are no consistent quality standards or regulation for ADR providers, so it can be hard to know how to choose a good service.
Costly
Arbitration in Rwanda like in international commercial matters where the seat can be in any country of parties’ choice is costly in terms of buying air tickets for participants, reservation of hotels and remuneration of arbitrators. Article 65 provides for costs in Arbitration in Rwanda.
Bibliography
Laws
LAW N° 005/2008 OF 14/02/2008 on Arbitration and Conciliation IN COMMERCIAL MATTERS
Reports
Alternative Dispute Resolution Leaflet, written by  Margaret Doyle published by Advice Services Alliance, June 2012 (http://asauk.org.uk/wp-content/uploads/2013/08/Why-use-ADR.pdf)

Alternate Dispute Resolution Handbook (http://www.opm.gov/policy-data-oversight/employee-relations/employee-rights-appeals/alternative-dispute-resolution/handbook.pdf)

Criminal Process in Rwanda Legal System

A crime is an act or omission made and punishable by law. Discuss this theme under criminal process perspective.

Introduction

The criminal justice process entails quite a good number of procedures to be followed and varies from one jurisdiction to another. It is also important to note that the same criminal justice system further more varies from capital offenses to minor criminal offenses even within the same jurisdiction. And in some circumstances even the procedures vary depending on the nature of the case. What was done in one case might not necessary be the same that is done in another case even with similar facts. Our focus however is going to base more on the Rwandan Criminal process and much emphasis and reference will be made to the Code of Criminal Procedure of Rwanda. The Rwanda Constitution of 2003 as amended provides that no person shall be denied of personal liberty and shall not be arrested or prosecuted for an offense that is not provided for by the law, he/she shall be entitled to be informed about the offense she/he is being charged and such a trial shall be conducted in the gazetted trial procedures.

Similarly under Article 19 of the Rwanda Constitution a person shall be presumed to be innocent until a fair and just trial has been conducted publicly and the accused has been proved guilty. It is also important to note that under Article 20 of the Rwanda constitution, a person cannot be tried or arrested for an act that did not constitute an offense at the time of commission.

Preliminary investigation

The Code of Criminal procedure of Rwanda provides that the Judicial Police is responsible for detecting offenses and gathering incriminating and exculpatory evidence and also searching for perpetrators of such offenses, the co-offenders and accomplices. This provision gives the judicial police to do the very first investigations in case a crime has been committed. It is important to note however that such investigations can either be on a judicial police officer’s own initiative, after a complaint has been lodged by an individual or after being instructed by the public prosecution. After the complaint has been lodged or upon receiving instruction from the public prosecution, the judicial police officer then immediately must move to the scene of crime and collect all the relevant facts as seen in Article 23 of the Code of Criminal Procedure. The Code of Criminal procedure under Article 24 provides that a judicial Police Officer must preserve evidence which is found at the scene and no one should tamper with the condition in which the scene is found apart from the judicial police itself in circumstances prescribed by law. Further the police officer has to interrogate any person that has vital information in regards with the crime committed and such persons can be called by way of summons. At the end of the interrogation, then a statement is written and the interrogated person confirms the contents in it and sign with the judicial police officer’s counter signature.

Similarly the judicial police officer may retrieve information that is held by any one by way of conducting a search which might be of the premises or even a body search of the individual being investigated. However such searches must be conducted after obtaining a search warrant from the public prosecutor for the premises and authority from the public prosecutor to conduct a body search. However the person being body searched has a right to be searched at a place in the presence of any person he/she trusts. In the Rwandan legal system if a judicial police officer finds movable property belonging to the suspect and it was used in the commission of a crime. Such property can be seized by the officer and a statement of seizure written showing the details of such item seized and such statement must be signed by the owner of property being seized as seen in Articles 30 and 31 of the Code of Criminal Procedure.

The Code of Criminal procedure under Article 33 provides for being caught red-handed or presumed to be caught red-handed and this is a person caught in the act of committing an offense or immediately after committing an offense. A person presumed to be caught red-handed shall be a person being yelled at by the public or found with arms, instruments, documents or any other objects which give reason to assume that he/she is a perpetrator or an accomplice provided that it is soon after the offence. And in such circumstances a speedy trail must be commenced by submission of the case file to prosecution within 72 hours and the prosecution must seize court within 5 days whereof trial must commence within 15 days as seen in Article 34.

If the offender commits an offence liable to 2 years and more of imprisonment and is arrested by the judicial police he must be put in a gazetted custody facility. Similarly he should be informed of the charges being preferred against him and also given a right to legal counsel or a right to inform a person he trusts about his/her arrest. Immediately after preliminary investigations are done a report in form of a case file is submitted to the prosecutor. Such report includes the following; Police officer who conducted the investigations, the plaintiff and defendant, the law violated and Mens Rea of the suspect, participation of the suspect in commission of the offence, Date and place of commission, evidence against the accused and a list of witnesses if any.

PROSECUTION

The power for prosecution in the Rwandan legal system lies with the prosecution. If a report is handed over to them they might choose to do further investigations. And these may include summoning of witnesses and any other person they deem relevant to deliver information about the crime committed, interrogation of the suspect(s) and witnesses. The interrogated persons are made to record statements and the contents read unto them, they also have to sign the statement. The prosecutor can also conduct cross examination between the suspect(s) or witnesses listed at the request of any interested party or at the prosecutor’s own initiative for purposes of clarity. Similarly the prosecution can conduct search of premises and body search of suspect and if there is any incriminating movable property belonging to the accused can be seized and a statement of seizure written by  the prosecutor and signed by the accused.   

Upon completion of further investigations the prosecutor shall draft an indictment which includes the name and jurisdiction of court being seized to commence trial. The claimant and defendant and in purposes of criminal offences the NPPA is at all times the claimant. The facts of the case, offence committed, and the law violated, particulars of the suspect(s) elements of the offence(s) committed, showing the intention (moral element), the legal element and the actus reus (material element). It is also important to include witnesses information, material  evidence and most importantly not forgetting the prosecution prayer because it is the main reason as to why court is seized. The indictment is concluded by statement of contents of the dossier, place where the indictment was done and signature of the prosecutor. According to the Code of criminal Procedure of Rwanda, court shall be seized when the prosecutor files a case and in such circumstances after drawing an indictment he files it in a competent court to try the criminal suspect and  the trial shall be presumed to have been commenced.

Trial Process and Sentencing

The Rwanda Criminal trial process suggests a speedy and fair trial especially for the persons caught red-handed as has been discussed earlier. Similarly a person is entitled to legal representation or can choose to be assisted. In case of legal representation, he may not appear in court like for minor offences but capital offences like murder the accused must be present. During hearing, the court registrar calls the roll of parties to the proceedings; the court registrar reads out particulars of the accused and the offence alleged against him/her; the court asks the accused whether he/she pleads guilty or not guilty; the Public Prosecution presents evidence proving the guilt of the accused; the accused presents his/her defense and explains the circumstances in which he/she committed the offence if he/she pleads guilty; parties to the proceedings, prosecution or defense witnesses are examined by the judge, or parties directly cross-examine each other or witnesses, and disputed points of testimonies given are debated and the court decides thereon; experts are heard, if necessary, if necessary, evidence that may be conducive to ascertaining the truth is examined; the civil party explains his/her claim, the person liable for damages is also heard; the Public Prosecution presents a summary of charges against the accused and the punishment requested against him/her; the accused person is given the last opportunity to be heard; if necessary, the court registrar reads in public the record of hearing before it is signed; the hearing is declared closed and the presiding judge informs the parties present the date and time when the judgment will be pronounced. Such a seating must be conducted at a place set by court and on a date well known to the parties. Proceedings can either be held in public or for purposes of public morals in camera.

Sentencing

Sentencing procedures vary with the type of sanction under consideration. In as much as judicial officers are given discretion in determination of a proper sentence for a criminal; however such discretion must be exercised in accordance with the law. In the past judges were given a lot of discretion to decide in a way they feel appropriate. However, with the introduction of precedent judges are compelled to treat like cases alike for purposes of predictability.Similarly, In Rwanda the doctrine of Precedent has been appreciated and judgments decided by the Supreme Court of Rwanda are binding on all other courts.After hearing both the prosecution and defense when the pleadings have been closed, on the date of judgment a sentence shall be pronounced by the presiding judge and he/she must besides precedent follow the following while writing the final judgment/sentence;

Article 82 of the Code Penal of Rwanda states that in the event of combination of aggravating, excusable, recidivism and mitigating circumstances, Courts shall apply the penalty taking into account these factors in the order set out under this Article.

Article 79 the same law defines recidivism, for the purposes of this Organic Law, recidivism occurs when a person who was previously sentenced to imprisonment of at least six (6) months, commits another felony or misdemeanor within a period of five (5) years after completion of the penalty. In case of recidivism, the convict shall receive the maximum penalty provided by law and the penalty may be doubled.

Article 71 of the Code Penal of Rwanda provides the factors taken into account by the judge in determining a penalty. The judge shall determine a penalty according to the gravity of the offence taking into account offender’s motives, history and background, circumstances surrounding the commission of the offence and individual circumstances.

Article 70 of the Code Penal of Rwanda provides that the Court shall pass judgment in accordance with the provisions of law and must state the reasons for its decision.

Similarly under Articles 77 and 78 of the Code Penal mitigating circumstances are provided for which may include reporting oneself after commission of the offence, pleading guilty at the beginning of trial or if the offence committed carries minor consequences.

Conclusion

All in all the Criminal process perspective is a justice dispensing system which involves well laid down procedures by law for tracking down offenders, bringing them to justice and giving them a suitable punishment. This system carries with it deterrent, retributive, reformation, protection of the community and reparation measures.

BIBLIOGRAPHY
Primary Sources

Laws

The Constitution of Rwanda of 2003 as amended

Law Nº 30/2013 of 24/5/2013 relating to the Code of Criminal Procedure

Organic Law N° 01/2012/OL of 02/05/2012 instituting the Penal Code

Text books

Criminal Procedure by LaFave, Israel, King and Kerr, 5th Edition Hornbook Series printed in

Gomesi

The history of ‘Gomesi’ dress in Uganda is obscure. The exact date when the first Gomesi was sewn, the tailor who made it and the first person to wear it has remained
a mystery. Nonetheless, there are two versions about the advent of a Gomesi to Uganda.
The first version claims that the Gomesi was first sewn by an Asian (Indian/Goan) tailor
called Milagres Gomez who was residing around Mengo Hill, near Kampala Township in 1905 or on Bombo Road near Gayaza village.
This version adds that Gomesi was the first school uniform for the Gayaza Junior School and was made by Gomez who was asked by Miss Freda Allen, the first headmistress of the school, to sew them school uniform. Gayaza Junior School opened on January 18, 1905 with four girls who had previously been pupils at Namirembe Girls’ Junior School, the first girl’s school in Uganda. Namirembe Girls’ Junior School had opened in 1898 but closed
in late 1904 to pave way for the expansion work at Namirembe Hill.
The four pioneers were daughters of some Buganda chiefs. The remainders of the pupils were absorbed in the first mixed
school in the country which was built at Kampala Hill in 1902 below the Namirembe Hill, historical records indicate.

The second version claims that the Gomesi was first made by an ‘India/Goan’ tailor called Fernando Gomez in the 1920’s or
thereafter who resided along Bombo Road near Gayaza village.
This version also asserts that Miss Allen, the headmistress of Gayaza Junior School, asked Gomez to make uniforms for the school.
And later, the dress became a popular wear for women in Buganda and beyond.

The version further claims that the name Gomesi came from Gomez who had been sewing the unbranded dress for long. Since
the illiterate clients could not pronounce the name Gomez, they called him Gomesi.

And soon the attire came to be known as Ekiteteyi Kya Gomesi and later people called it Gomesi and the name stuck to this day.

Questions
So, was Gomesi first made by Gomez in 1905?
There are pictures of Gomesi in Uganda dating before 1905; which would mean that the Gomesi was not first made here in 1905.
Nevertheless, there are pictures from Gayaza High School archives unfortunately only dating from 1908 showing female school staff dressed in strapless Gomesi
while other undated photographs show students wrapped in Suuka as well as strapless Gomesi of different colours and
some flowered.

The Suukas covered the body from the chest to ankle and were worn all the time both in class and outside including the garden.
Gayaza High school evolved from Gayaza Junior School. Evolution of the Gomesi Could the Gomesi have evolved from the famous Suuka wear?

Cotton-made Suuka was the first foreign feminine wear in Uganda.
The coming of the Arab traders and later the first Christian missionaries in 1877 to Uganda changed the social life style of
Ugandans especially those who interacted directly with the foreigners.

It was the foreigners who brought cotton- made Suuka wear into Uganda. Previously, Ugandans, except those in north and north
eastern Uganda used to wear bark cloth Suuka made locally.

Up to 1910, some mature men and women from West Nile, north and north eastern Uganda wore a thong covering only the private parts while the buttocks went naked– pictures available show.
Nevertheless, from the colonial pictures taken between 1880 and 1900 in Uganda show that it was only in Buganda where girls and women wore the bark cloth Suuka
wrapped from above the breasts to the ankle.

While in Tooro, Ankole and Bunyoro
kingdoms as well as Busoga region, apart from the royals, girls and women wore backcloth Suuka wrapped from below the
breasts to the ankle, historical pictures show. Worth to note is that from 1840’s when the Arab traders first arrived here in 1880s, cotton Suuka were a nobility and
novelty of the royal and the rich.
Nonetheless, it would seem that the Uganda’s famous Gomesi dress started evolving from the Suuka wear before 1900; if it was not imported here for the photograph of Kayima (Buganda Saaza chief
of Mawogola) Matayo Kisule and his family taken in 1895 by Father Varangot of the White Father shows a woman dressed in a
strapless Gomesi.

In the photograph, a woman standing next to chief Kisule is dressed in a Gomesi with flaps hanging around the hips. And the
Gomesi seems to be fastened above the hips or inside the flaps. So, could what the woman standing next to chief Kisule be
wearing of the earliest Gomesi design as it evolved from the famous Suuka wear? Did Gomez make Gomesi for the first time in
1905 or he simply modified?
What is clear though, is that in the 1920s, Gomez changed the Suuka from being strapless to having a bra size straps to have today’s look of a Gomesi. And in 1930s, the
straps were enlarged and the following years Gomesi with sleeves and better designs
were made.

Since 1940s, different Gomesi designs have been made. But its history has remained a mystery.
First sewing machine in Uganda
Brother Hermann of the White Fathers of the Roman Catholic Church was the first person to import a sewing machine into
Uganda on the advice of Monsignor
Livinhac. Brother Hermann arrived in Uganda in late 1897 with a team of other priests. On arrival, he was posted to Bikira Catholic Mission in Masaka, present day Rakai District. He had been transferred from present day Algiers city in Algeria to
Uganda by Monsignor Livinhac.

“My major assignment was to sew dresses for the ‘Baganda people’ [meaning people in Uganda]”. Brother Hermann reveals in his
memoirs published in 1955 when he was at Kisubi Catholic Mission aged about 88 years.

STORY WAS EXTRACTED FROM THE SUNDAY MONITOR, 17/08/2014

Family Law

DISCUSS THE RISE AND FALL OF      MONOGAMY IN UGANDA

Definition of Marriage.

According to the English law, marriage is an agreement by which man and woman enter into a legal relationship with each other which imposes legal rights and duties. Marriage whether civil or religious is a contract formally entered into. It confers on the parties the status of husband and wife, the essence of the contract being an agreement between a man and woman to live together, and to love one another as husband and wife, to the exclusion of all others.1 This is very clear and precise to the point that marriage is a social union between people of the opposite sex and not animals for sexual intercourse as we know that the essence of marriage is to subdue the world by giving off springs. The introduction of English Common Law has hence further more emphasized the concept of consummation as one of the major aspects of marriage and can lead to its dissolution if one of the parties can not consummate, with exception of circumstances where the party who has failed to be sexually satisfied has decided to a probate the marriage as seen in the case of Parajoic V Parajoic.2 
What Monogamy entails.
The 1995 constitution of the Republic of Uganda (Right to family) provides that men and women who have attained the age of majority can willfully contract marriages.3 It furthermore provides that a man and woman with free consent shall marry.4 To me the English and interpretation suggest the one man one woman principle as a form of marriage. The Good News Bible provides that God created man on the 6th day of his creation. He named him Adam to mean ruler of all creation, he saw that man was all alone in the Garden of Eden. Hence he made man sleep and created Eve, she was named woman to mean created out of man’s rib. It was God’s plan to create one man and one woman to live in harmony in the Garden of Eden. Further more the Bible highlights the three pillars of love which are leave, cleave and become one flesh. 5 This means that one has to leave his/her parents’ home and look for a suitable partner for marriage.

1. N.V Lowe & G. Douglas, Bromley’s Family Law, 10th Edition, Oxford University Press, pg.39
2. [1959]1 ALLER 1
3. Article 31(1)
4. Article 31(3)
5. The Book of Genesis
In this we get the true meaning of monogamy which is simply the marriage where the two consenting parties that have attained the age of majority decide to have one spouse till death.
Brief History 
The practice of polygamy is dated way back before the coming of the missionaries and civilization in Uganda whereby men would construct homesteads and put up different units for their wives. In the past it was very rare to come across a strong man practicing monogamy since they mainly met and contracted marriage with women through raids and conquest. However due to the introduction of both religion and Common law we see new developments in the type of marriages contracted in the country having a shift from the celebrated polygamy to monogamy. This can be clearly seen in the case of Rex V Amkeyo6, where we see the English attitude towards the customary marriages being negative. Particularly we see Hamilton C.J making an error in law where by he did not appreciate the native custom of bride wealth and termed it to be wife purchase. However the Islamic faith did not to a great extent differ from the customary marriages as it also embraced polygamy. 
The practice of monogamy in Uganda picked momentum due to the following as discussed below;
The influence of religion (Church Marriage)
Religious marriage is a contract formally entered into which confers on the parties the status of husband and wife, the essence of the contract being an agreement between a man and woman to live together, and to love one another as husband and wife, to the exclusion of all others. This aspect of exclusion of others entails the whole principle of marrying one wife and one husband which was the aim of God even in the very beginning as seen in the book of Genesis which entails the story of creation. The Marriage Act Cap 251 provides that celebration of marriage shall not be valid where there is a subsisting customary marriage of one of the parties with another person.7 Hence the church marriage in Uganda can only be embraced in the presence of minister of God in a licensed place of worship. The saying of vows entails consent and tying of the knot to signify that one is supposed to get married to one partner till.
6. (1917) KLR 14
7. Sec 34
This has in the end result led to the subsistence of monogamous marriages in the country today.
The provisions of case law
Monogamy in Uganda has also been observed as a practice of marriage due to the influence of case law that has emphasized the exercise of one man and one woman relationship. In the locus classicus case of Hyde V Hyde8, marriage was termed as the voluntary union for life of one man and one woman to the exclusion of others. Lord Penzance in particular proposes that marriage must be monogamous and neither spouse may contract another marriage so long as the original union subsists. Since Uganda is one of the common law countries and still practices the rules and regulations as portrayed by the common law countries is reluctant to decline from the judgment of this learned judge. This is an olden case but is still good law hence has seen the practice of monogamy prevail in Uganda up to now. However in contrast with the case of Mwagiru V Mumbi9, the plaintiff sought a declaration that there was a valid and subsisting marriage between himself and the defendant by the Kikuyu custom, both parties being Kikuyu. The defendant alleged that no such marriage existed because she had not given her consent and had not even been present at the essential ceremony. She admitted that she had lived with the plaintiff at his house for a short time but claimed that she had been forced into doing so by her father. She hence adduced that had gotten married to another man through civil marriage after escaping from the plaintiff. According to the provisions of the Marriage Act Cap 251 of Uganda no one is entitled to get married while there is a subsisting customary marriage with another person.10 The key issue in Mumbi’s case was whether there was a valid marriage between the plaintiff Mwagiru and Mumbi. In this case, we see that lack of the element of consent made that marriage to be void. Hence the plaintiff was relieved from the charge of committing polygamy, in this we see that the provisions of case law as highlighted by Lord Penzance emphasize the issue of monogamy which has been obeyed by many of the Ugandans today.

8. [1866] LR 1 P&D 130
9. (1967) EA 639
10. Sec 34
Statutory provision
The Marriage Act Cap 251 provides that all marriages that are celebrated by parties and yet one of them is at the same time married to another person in customary law is void.11 Customary marriage being one of the recognized forms in Uganda entails that any other interest of marriage along side customary is void. This as a legal practice has endeavored to uphold monogamy in the country hence the prevailing of one man one woman relationships.
The same Act goes on to set a penalty for any one who practices polygamy12 which is enough evidence tendered to point out the struggles by the Ugandan judiciary and legislators to combat polygamy and uphold one man one woman relationships. The Act provides that contracting marriage by customary law when one is already married under this Act is liable for imprisonment.13 The Customary Marriage (Registration) Act Cap 248 provides that a marriage may be considered to be void when one of the parties has previously contracted a monogamous marriage which is still subsisting.14 The Hindu Marriage and Divorce Act Cap 250 provides, under the conditions for marriages, that marriage may be solemnized where neither party has a spouse living at the time of the marriage.15 In R.S V S.S and another16, the respondent and the petitioner who were both Sikhs were married in a Sikh ceremony in December, 1957 and this was a valid marriage under the Hindu Marriage, Divorce and Succession Ordinance. Carrying out of another marriage without the dissolution of the subsisting Hindu marriage was illegalized. Hence the embracing of Hindu marriages in Uganda as well which emphasizes monogamy has led to the rise of monogamous marriages in the country.
Health precaution
The practice of one man one wife has been persistent in Uganda due to statistics provided by health organs like UHMT which has discouraged the taking on of other sexual partners called “side dish.”
11. Sec 34
12. Sec 49
13. Sec 50
14. Sec 11(e)
15. Sec 2(1)(a)
16. (1969) EA 229
This movement against the sexual network has been strong as advertisements highlighting the dangers of having another partner like contracting sickness like HIV AIDS have been clearly spelt out. This came as a strong movement to combat the insurgency of HIV in Uganda and hence has been embraced as a practice to stay safe. Precautious measures as emphasized by the health ministry to remain faithful to one partner has further taken momentum in Uganda since those who remain faithful to their partners are not likely to spread or contract the sexually transmitted diseases. This is also coupled with counseling advice given to partners when they visit hospitals. They have been advised by doctors to stay faithful to one another and by doing this they will be able stay safe from sexually transmitted diseases. As discussed above we see that the practice of monogamy has raised in Uganda due to the fear to contract sexually transmitted diseases hence the habit of polygamy is dropped.
The influence of culture
Some of the cultures in Uganda deem polygamous marriage to be immoral hence individuals take on monogamy which is believed to be moral. This is typical of the western culture hence has been embraced by many Ugandans who get their inspiration from the western culture. English law provides that marriage is an agreement by which man and woman enter into a legal relationship with each other which imposes legal rights and duties. Marriage whether civil or religious is a contract formally entered into. It confers on the parties the status of husband and wife, the essence of the contract being an agreement between a man and woman to live together and to love one another as husband and wife to the exclusion of all others.17
The Ugandans have hence copied the European community in Uganda with the practice of monogamy. The case of Rex V Amkeyo18 acts as an example to this effect; in this case Amkeyo was charged of stolen property and the main witness was a woman whom he claimed to marry according to native custom. On the basis of law of evidence, the testimony of this woman should not have been admitted given the desire to protect marital confidence. The issue in this case was; whether the woman married under native custom was a wife in strict sense of word and effect that the relationship between Amkeyo and the alleged wife could be construed as marriage.

17. N.V Lowe & G. Douglas, Bromley’s Family Law, 10th Edition, Oxford University Press, pg.39
18. (1917) KLR 14
Hamilton C.J stated that the alleged marriage between Amkeyo and the woman was for lack of a better phrase “Wife purchase” and that it did not fit in ideas of marriage as generally understood among civilized people and that the native custom was repugnant to good conscience and morality. However it was revealed that the C.J had under scored standards of marriage as understood among the English.  For more emphasis, the Domestic relations Bill as it provides for the illegalization of polygamous marriages has been mainly derived from the western practices in order to do away with some of the rigid cultures in Uganda that call for polygamous marriages.
Dictation as derived from poverty
Some have been forced to practice monogamous marriages since they can not afford to take on other wives. This is mainly on the side of men since they are taken to be the bread winners and head of family are supposed to take care of their families by providing the basic needs like food, shelter, clothes and others. Care for the family is a fundamental obligation conferred on all fathers in Uganda and failure to do this is an offence.
The 1995 constitution of under the rights of the family provides that children are entitled to be loved by their parents.19 Women are also protected in such a way that all practices of men that are against the free will of them are prohibited as seen in the Rights of women.20 In summary we see that practice by men to take on other wives is also limited to the duty to take care of their families. Hence parents who are incapable to look after their families are limited by these provisions as clearly highlighted in the constitution which is the supreme law of the land. The practice of monogamy has also been adopted as an income saving practice; this is simply because one is committed to only and only one household.
The polygamous marriages come along side them money consuming responsibilities like looking after many people. Due to the escalation of commodity prices in Uganda day by day and the double figure inflation as of now will see many of the Ugandans embracing more the monogamous marriages or even giving up to contracting marriage. Gone are the days when looking after a family was easy as long one had enough land for agriculture and establishment of make shift shelter.
19. Article 31(4)
20. Article 33(6)
The situation in Uganda today dictates as it is not easy to sustain to families, one of the many friends I have was quoted for making a memorial statement that if at all he has failed to look after himself then how will he be able to sustain a sounding family of say 2-3 people. Hence the practice of monogamy in Uganda has of today also been due to the poverty that is eating up Ugandans as it is not easy to get a paying job and if gotten one might not be able to look after a diverse family since the essential needs in the family are at an over whelming high price.

The practice of monogamy in Uganda has not been embraced due to the following as discussed below;
The technicalities involved in other marriages
Customary marriages were potentially polygamous and the recognition of marriage did not depend on its registration. Payment of bride price and its acceptance constituted marriage and demand for it was a significance of divorce. Monogamous marriages which were introduced by the English law were contrasted in favour for polygamy.21 The fall of monogamy in Uganda is due to the long process involved in these marriages; these have in the long run made the Ugandans to shy away from the whole process and contract polygamous marriages that do not require stressing processes.
Lack of strong laws to emphasize monogamy  
In March of 1960, a subcommittee was set up to study the subject of legal status of Hindu married women; it was observed that lack of a protectorate law governing Hindu marriages making women to get married under Hindu law having no legal protection. This is turn could lead to the desertion of the women by men and hence enjoyed polygamy.22 Hindu Marriage Ordinance of 1961 gave legal recognition to Hindu marriage as monogamous although those contracted before whether monogamous or polygamous were recognized and given legal status.23

21. Winfred Brown, Marriage, Divorce & Inheritance, Cambridge African Monographs 10, pg.10 
22. Winfred Brown, pg.26
23. Winfred Brown, pg.27
The Penal code Act Cap 120 provides for the offence of Adultery in the controversial section where it states that any man who has sexual intercourse with any married woman not his wife is liable for committing the offence of Adultery,24 it further restricts married women from having sexual intercourse with any man except their husbands.25
To me such a law that gives a gift with one arm and takes it away with the other is bad law and needs to be repealed. This section restricts men to have sexual intercourse with only married women who are not their wives and does not restrict them to those who are not married hence is seen to promote polygamy in the country. It is this laxity of the law that has embraced the practice of polygamous marriages in Uganda during time and time over. However a solution is being sought to over come this problem and this in the spirit of a Bill (Domestic Relations) although this has taken Uganda over 40 years to pass due to the rigidity of some institutions.
The influence of cultural norms and custom
Marriage in the customary law is the contract between the intending bridegroom and the bride’s father and the actual marriage consists in the performance of this contract, father handing over the girl and consideration in form of customary payments known as bride wealth. Such marriages are polygamous and a man may enter into as many such marriage contracts as he wishes and can afford.26 In the African culture it is prestigious for a man to marry as many wives as one wished hence he can be seen as a wealthy and strong man27 and this is perhaps true because most of the rich men in the country if you are to carry out research have attained polygamous marriages since they feel that pride with in them to take on as many wives as they can.
Further more giving birth to very many children is regarded as security since they can look after their parents in old age.28 The girls are also a source of income as when married off the parents are rewarded with bride wealth. One should however note that giving birth to dozens of children is difficult in one wife since she might not be able to conceive and look after them.
24. Sec 154(1)
25. Sec 154(2)
26. Winfred Brown, pg.53
27. Christine Birabwa Nsubuga, Women under Customary Marriage in Uganda, Printed in Denmark, 2007, pg.37
28. Christine Birabwa Nsubuga, pg.38
Hence the men resorted to the idea of marrying many wives and give birth to a couple of children in different mothers. One should note that these practices are not olden and are still embraced by a big number of Ugandans. This has been evident in such a way that we still have customary marriages in the country. The Baganda call them “Okwanjula,”29 the Banyankole refer to them as “Okuhinjira.”  
Statutory provision
With the presence of valid law that embraces polygamy, definitely this is one of the reasons as to why monogamy has collapsed. The Customary Marriage (Registration) Act 248 provides that customary marriages may be polygamous, 30 where a party to a customary marriage contracts another monogamous marriage, the monogamous marriage will be void.31 With this we see that customary marriages entertain and embrace polygamous marriages call them their delicacy.
Customary law is the collection of traditional norms and practices that govern a particular community but do not form part of the national legal statutes of society as a whole.32 Hence the legalization of polygamy for some of the cultures has seen its persistence in the country today and this indeed has a pinch of salt on the present practices. Traditional ceremonies are respected and the conclusion of introduction ceremonies the consenting parties are issued with certificates in some tribes for example among the Baganda. The respect accorded to customary marriages by Uganda’s law has seen reluctance for some to contract religious marriages.
The influence of religion
The presence of the radical Islamic religion in the country that embraces polygamy claims that it is the will of Allah. The Muslims believe in total submission to Allah hence they wholesomely embrace the provisions of the Quran. However one should note that it provides for one to only take on other wives to a maximum of 4 if he can look after them. You should note that the women are also in agreement with this and hence it has taken momentum in Uganda.

29. Enkuluze y’oluganda ya Makerere University
30. Sec 4(2)
31. Sec 13
32. Encarta Dictionary: English, North America.
It is also important to note that the Muslims are on the fore front to reject what they term to be a controversial Bill (Domestic Relations), they claim that it is malicious to mainly the Islamic faith as it seem to table a proposal to scrap off polygamous marriages. In Alai V Uganda33, the adulterer and others were all Muslims and the marriage between the adulteress and her husband was of Islamic faith; the key issue in this case was whether the offence of adultery applied to all types of marriages or restricted to monogamous marriages and does not apply to potentially polygamous marriages. It was held that adultery can be committed by women in polygamous marriages, however for men in the Muslim marriages can only commit adultery if they exceed the 4th wife. With this we see the Muslim faith a strong advocate to the polygamous marriages leading to the down fall of monogamy in the country.
Recommendation 
I would advise the government of Uganda to revise its laws and make sure that they suit the level of development of country at the time. Particularly the law against adultery should not only look at instances where men have had sexual intercourse with women who are married but at also instances where they have it with those not married as long as they are not their legal partners.
Conclusion 
The monogamous marriages are contracted in Uganda alongside polygamous marriages which are authorized by law and these are majorly contracted as religious, civil and customary marriages.    

33. (1967) EA 595
BIBLIOGRAPHY

BOOKS
N.V Lowe & G. Douglas, Bromley’s Family Law, 10th Edition, Oxford University Press.
Winfred Brown, Marriage, Divorce & Inheritance, Cambridge African Monographs 10.
Christine Birabwa Nsubuga, Women under Customary Marriage in Uganda, Printed in Denmark, 2007.
Encarta Dictionary: English, North America.
Enkuluze y’oluganda ya Makerere University.

STATUTES
1995 constitution of the Republic of Uganda.
The Marriage Act Cap 251.
Customary Marriage (Registration) Act Cap 248.
The Hindu Marriage and Divorce Act Cap 250.
The Penal code Act Cap 120.