The prohibition of discrimination and the workers’ right to maternity or paternity leave in light of the drafting history of Article 40 of the Constitution of Uganda and sections 56 and 57 of the Employment Act

Introduction

In Uganda, workers’ rights can be divided into two broad categories: constitutional rights and statutory rights. Constitutional rights are provided for under Article 40 of the Constitution (which is reproduced below). Statutory rights are provided for in different pieces of legislation ¹ which include the Employment Act (2006) (the Act). ² The Act ‘operationalises’ some of the rights that are included in the Constitution (for example, the right to maternity leave), those which are not provided for in the Constitution (for example, the right to paternity leave) and those which are provided for in some of the international labour conventions to which Uganda is party. Article 40(4) of the Constitution provides that ‘[t]he employer of every woman worker shall accord her protection during pregnancy and after birth, in accordance with the law.’ The drafting history of Article 40 shows that the provision was meant to require employers to provide maternity leave. Article 40(4) is operationalised by section 56 of the Act. Section 56(1) of the Act provides that ‘[a] female employee shall, as a consequence of pregnancy have the right’ to maternity leave as a result of ‘child birth or miscarriage.’ Section 57(1) of the Act provides ‘[a] male employee shall, immediately after the delivery or miscarriage of a wife, have the right to’ paternity leave. In this article, the author takes a look at the drafting history of Article 40 generally to indicate the reasoning behind its inclusion in the Constitution. It is in this context that the drafting history of Article 40(4) is also situated. The author illustrates the drafting history of sections 56 and 57 of the Act. This history is important to demonstrate how these provisions should be interpreted. A combined reading of the drafting history of Article 40(4) and section 56 of the Act shows, inter alia, that for a woman to qualify for maternity leave, she does not have to be married. This history also creates room for the argument that maternity leave is only applicable to biological mothers. A study by Blum et al. on behalf of the International Network on Leave Policies and Research shows, inter alia, that in many countries, adoptive parents, commissioning parents (in case of surrogacy agreements) and those who have terminated their pregnancies (abortion) have a right to maternity leave. ³ However, in Uganda, the right to maternity leave does not extend to adoptive mothers, commissioning parents (in cases of surrogacy agreements) and to those who have committed abortion. This raises the question of whether this does not amount to discrimination against non-biological parents and those who have committed abortion. The author argues that it amounts to differential treatment. However, this treatment can be justified. Under section 57, a man can only get paternity leave if his wife gives birth or had a miscarriage. However, the Act does not define the term ‘wife.’ During the second reading of the Employment Bill, ⁴ legislators disagreed on whether a man had a right to paternity leave if he is not married to the woman he impregnated. The legislators were divided on this issue and agreed to leave it in the hands of the ‘courts’ to determine. It is argued that since Ugandan law does not recognise marriage by cohabitation, a man can only get paternity leave when he is married to the woman he has impregnated. It is argued that this amounts to discrimination on the ground of marital status. The author starts by discussing the drafting history of Article 40 generally and later Article 40(4) in particular. After that, he deals with the drafting history of sections 56 and 57 of the Employment Act. He thereafter deals with the relevance of this drafting history to the interpretation and application of sections 56 and 57 of the Act. It is this context that the issue of discrimination is also discussed.

The background to including workers’ rights in the Constitution

In 1988, the Ugandan government embarked on the process of enacting a new constitution. This process required, inter alia, the participation of as many Ugandans as possible. Thus, the Constitutional Commission (the Commission) was established. One of its duties was to gather views from Ugandans on the issues they wanted the new constitution to address. To achieve this objective, the Commission asked Ugandans to make oral and written submissions to it. In its report, the Commission documented, inter alia, that people ‘expressed deep-rooted concerns on institutionalised discrimination against certain categories of people in our society and the gross violation of their rights.’ ⁵ The Commission mentioned workers as one of the ‘groups seriously affected’ by those violations. ⁶ The Commission added that in their submissions, workers ‘complained bitterly’ about the violation of their rights since independence. ⁷ These rights included ‘to form and run independent trade unions’, to organise strikes, to collective bargaining ⁸ and freedom of association. ⁹ They also complained about poor remuneration and general poor working conditions. ¹⁰ The Commission added that workers complained that many employers despised them and that ‘[t]he protection of workers rights’ during long sickness and at the termination of their services or at retirement was found to be either lacking or utterly inadequate.’ ¹¹ Against that background, the Commission wrote that ‘[t]he rights of workers to associate, form unions, organise, bargain collectively and demand improved conditions of work should be guaranteed in the new Constitution.’ ¹² It added that ‘[t]he voice of workers has been unanimous in the demand for all their rights.’ ¹³ The Commission emphasised that Uganda was ‘a signatory to the various conventions of the International Labour Organisation (ILO) for the protection of the rights of workers and employers’ which required it to respect various workers’ rights. ¹⁴ Against that background, the Commission recommended that the new Constitution should include the following rights:

(a) The rights of workers and employers to form autonomous associations and unions should be recognised. (b) The rights of workers to belong to unions of their choice, to collective bargaining and to strike should be recognised. (c) The right of workers to representation in decision-making in matters which affect them should be guaranteed. Representatives of government, employers and workers should discuss employment policy and seek to resolve conflicts through consultation. (d) Workers should have a right to healthy, clean and safe conditions at work. (e) Workers should have a right to a living wage which can support them and their families to live an adequate standard of life. (f) Workers should have a right to adequate rest and periodic holidays and to an adequate pension on retirement. (g) Workers should enjoy all the rights guaranteed in all workers’ charters of rights which Uganda has signed and ratified. ¹⁵

The Commission recommended that ‘workers should enjoy all the rights guaranteed in all workers’ charters of rights which Uganda has signed and ratified.’ This implies that the Commission expected Ugandans to enjoy such rights whether or not such ‘charters’ had been domesticated. In other words, the moment government signed or ratified a treaty, the rights therein were automatically enforceable in Uganda. This recommendation had two challenges. One, under international law, generally a country is not required to give effect to obligations contained in a treaty it has signed before its ratification. ¹⁶ Second, Uganda follows a dualist approach in international law. Which means, inter alia, that a ratified treaty only becomes enforceable upon domestication. ¹⁷ Thus, mere ratification of a treaty does not create enforceable rights in Uganda. However, the Commission did not mention maternity or paternity leave expressly. This could be inferred from the recommendation that workers should enjoy satisfactory working conditions and that Uganda should comply with its international treaty obligations. We now turn to the debates in the Constituent Assembly to highlight how the drafters of the Constitution dealt with the issue of workers’ rights generally and paternity or maternity leave in particular.

Debating the draft Constitution in the Constituent Assembly

The Commission included its recommendations in the Draft Constitution which was debated by the Constituent Assembly to promulgate the new constitution. These recommendations dealt with the rights of workers generally and the issue of maternity and paternity leave specifically. It is important to note that workers’ rights are interrelated. For example, trade unions protect the right to maternity or paternity leave. That is why all these rights are discussed here. Clause 59 of the Draft Constitution provided several rights including the rights to freedoms of conscience, association and movement. Clause 59(1)(e) provided that ‘freedom of association, which shall include freedom to form and join associations or unions, including trade unions, political and other civic organisations.’ Clause 67 of the Draft Constitution was dedicated to the rights of workers. It stated that:

(1) Every person has the right to work under satisfactory, safe and healthy conditions, and shall receive equal pay for equal work without discrimination.

It is evident that in the draft constitution; the Commission did not include most of the recommendations it had made in its report. The rationale behind this is not clear. During the Constituent Assembly debates, the representative of the National Organisation of Trade Unions suggested that Clause 67 (1) and (2) should be adopted as they were. ¹⁸ However, he proposed that new provisions should be added to Clause 67 to protect the rights and interests of trade unions and the rights of pregnant workers. These suggested amendments will be discussed shortly below. One delegate suggested that Clause 67(1) should have been amended to provide that:

‘Every person has the right to work under satisfactory, safe and healthy conditions, and shall receive equal pay for equal work without discrimination and every employer has a right to receive satisfactory work from his workers.’ ¹⁹

He argued that that amendment was necessary to protect the rights of employers so that there is ‘equality of treatment’ between workers and employers. ²⁰ However, this proposed amendment was opposed on the ground that the words ‘satisfactory work’ were vague and could have been used to discriminate against pregnant women, ²¹ and exploit workers, for example, by working for long hours and under difficult circumstances. ²² In the light of these objections, the amendment was rejected and Clause 67(1), as proposed by the Commission in the draft constitution, was adopted. ²³ Clause 67(2) was not debated and was adopted in its original form (as included in the draft Constitution).

Another delegate argued that the above two provisions were insufficient in protecting the rights of workers. Thus, he suggested that other provisions should be added to provide for more rights. The suggested amendments were to the effect that:

“(3) Every worker has a right to form or join a Trade Union of his or her choice for the promotion and protection of his or her economic and social interest and rights to collective bargaining and representation. (4): The employer of every woman worker shall accord her special protection during pregnancy and after birth and paid leave and time to nurse her child. [5]... “Every worker has a right to withdraw his or her labour according to law”. ²⁴

He argued that the above amendments were necessary because Clauses 59 and 67 had not provided enough details on the issue of trade unions, the rights of female workers and the right of the worker to withdraw his/her labour. ²⁵ He added that Clause 67(3) was meant to ensure that ‘trade unions’ rights like any other rights which have appeared in other clauses be constitutionalised.’ ²⁶ He also argued that the amendment was meant to spell out the rights to form trade unions and also the objectives of these unions. ²⁷ He added that those rights had been included in the International Labour Organisation Conventions which meant that ‘delegates will not find as difficult thing to adopt because they merely’ provided for the workers’ rights. ²⁸ He emphasised that trade unions were crucial in representing workers’ interests and protecting their rights. ²⁹ He also argued that Clause 67(4) was meant to protect the rights of pregnant workers because the draft constitution was silent on this issue yet experience had shown that:

[W]omen workers have suffered in various industries and in institutions because of being pregnant. Some employers do not want pregnant women. As soon as a woman is seen to be pregnant, they say or they can be dismissed or suspended and even if a pregnant woman is given maternity leave with pay, but babies have to be nursed and maintained and should be looked after during this weaning time. ³⁰

He argued that it was necessary to include Clause 67(5) in the Constitution because it provides for rights which are protected in ‘one of the ILO conventions.’ ³¹ After making the above proposals, other Constituent Assembly delegates had, through their submissions, to decide whether or not to support the amendments. Thus, those who supported or opposed the amendments provided reasons for their positions. The submissions can be divided into two groups. In the first group, the delegates supported or opposed the amendments generally (without specifying the provision(s) to which their submissions were applicable). The second group was made-up of delegates who made submissions on specific provisions. The discussion will start with those in the first group.

Some delegates supported all the proposed amendments without focusing their submissions on a particular provision or provisions. The reasons they advanced in their submissions were that the amendments would protect workers generally and that it is the duty of the government and not the investors to protect workers; ³² and that they would guarantee the workers ‘utmost protection’ against exploitation. ³³ They added that the provisions were meant to protect Ugandan workers and not only investors; ³⁴ and to strengthen the rights of workers against exploitative employers. ³⁵ Another delegate argued that it was important to expressly provide for the rights of the workers in the constitution because the mere fact that they are provided for in treaties ratified by Uganda does not mean much to the workers unless those treaties are domesticated. ³⁶ Those who opposed the amendments argued that providing those rights to the workers was likely to discourage potential investors; ³⁷ there was no need to mention these rights in the constitution expressly and that they should be mentioned in subsidiary legislation. ³⁸

The second group included delegates who made submissions on each of the three proposed amendments above. Some delegates opposed the provision on trade unions. For example, it was argued that trade unions were interested in protecting the rights of workers at the expense of employers which was likely to discourage potential local and foreign businesses from investing in Uganda to avoid being ‘pressurised against the wall by trade unions and other related institutions.’ ³⁹ It was also argued that some investors might resort to the mechanisation and computerisation of different tasks to avoid being forced by trade unions to protect the rights of workers hence leading to unemployment. ⁴⁰ It was also suggested that providing for the constitutional right to form and join unions would compel employers to recognise trade unions which may be contrary to the interests of some employers. Therefore, it would have been better to leave the issue to be governed by the law of contract. ⁴¹ It was also argued that the issue of trade unions had been dealt with under the provision on freedom of association and there was no need to provide the same protection in another constitutional provision. ⁴² Finally, the provision on trade unions was opposed on the ground that the draft Constitution had already provided for circumstances in which workers were protected as a minority group. ⁴³

Those who supported the amendments argued that the fear that trade unions would scare away investors were unfounded as employers were also unionised and had the resources and expertise to work with trade unions; ⁴⁴ workers would not be compelled to join trade unions (it was to be voluntary); ⁴⁵ trade unions would be instrumental in protecting the rights of workers and improving their working conditions; ⁴⁶ and denying workers the right to form or join trade unions would have been discriminatory. ⁴⁷ It was argued that it was important for workers to join trade unions of their choice to avoid being forced to be members of employer-controlled trade unions. ⁴⁸ One delegate supported the provision on trade unions on conditions that it was amended to exclude mentioning the functions of trade unions because ‘it is the duty of trade Unions to promote and protect workers interests and to bargain collectively for pay raises and the rest.’ ⁴⁹ However, this proposal was opposed on the ground that the:

[I]ntention to bring this Amendment here under the principle for Economic Rights would be lost if we remove the present extension which is trying to explain why workers need to form unions. They need to form unions in order to achieve their economic rights and I think if we stop halfway, we would have not achieved and matched this Amendment with the principle under which it is being introduced. ⁵⁰

In light of the above objection, the proposal that the provision should be amended to exclude mentioning the functions of trade unions was rejected and the draft provision, as suggested by its mover, was adopted. ⁵¹ This would later become Article 40(3).

Some delegates supported the provision on the rights of pregnant workers (the original amendment). They argued that pregnant women had to be protected because Uganda had ratified the ILO Convention on maternity leave; ⁵² and that the amendment was important to protect the rights of working women of all backgrounds. ⁵³ They added that granting women maternity leave would also improve their productivity and enable them to take care of the ‘future workers’ (children) properly. ⁵⁴ It was also argued that the law should provide for paternity leave. ⁵⁵ Some delegates opposed the original amendment. They argued that it would discourage employers from employment women to avoid losing money during their pregnancy and maternity leave; ⁵⁶ it was silent on the issue of paternity leave; ⁵⁷ and the draft constitution already included a provision on the rights of women which could be interpreted to accommodate the rights of working women. ⁵⁸ Another delegate opposed this provision on the ground that its movers had not clarified whether the word ‘women’ included both married and unmarried women. His ‘concern’ was that some women, in their job application forms, indicated that they were ‘single’ but ‘then the next day you see them pregnant.’ ⁵⁹

One delegate argued that the amendment was necessary to protect the rights of women but was open to abuse. He therefore suggested that it should be amended to provide that: ‘[t]he employer of every woman worker shall accord her special protection during pregnancy on the job and to accord her reasonable Maternity Leave.’ ⁶⁰ I will refer to this as the second amendment. He added that this modification was important because:

[T]hat would cover both the employer and the employee so that during pregnancy, the employer recognises the need to protect that woman and the child within her, but on the job and that during the terms and conditions of employment, they agree on what would be reasonable Maternity Leave which also must be paid. ⁶¹

He argued that this would prevent women from abusing this right. ⁶² Another delegate who supported the amendment argued that apart from preventing women from abusing maternity leave to the disadvantage of the employers, it would also prevent employers from discriminating against women (by refusing to employ them) and also men from abusing paternity leave. ⁶³

The second amendment was opposed on the grounds that the word ‘reasonable’ was vague and open to abuse by employers. ⁶⁴ It was also argued that ‘original amendment was more adequate’ as it ensured that it balanced the rights of the employer and the employee by giving women more time to take care of their children. ⁶⁵ Since the word ‘reasonable’ was vague, one delegate suggested that the second amendment should be replaced with another amendment to the effect that ‘[t]he employer of every woman worker shall accord her protection during pregnancy and after birth in accordance with the law.’ ⁶⁶ I refer to this as the third amendment. He argued that it was unnecessary for the constitution to provide for the details of the rights of pregnant workers and that it was better to leave the issue to Parliament to deal with it in legislation. ⁶⁷ The mover of the second amendment decided to ‘drop’ it in support of the third amendment. ⁶⁸ It was argued that the third amendment would impose a duty on Parliament to enact legislation that would effectively protect the rights of pregnant women. ⁶⁹ Since there was no opposition to the third amendment, the Constituent Assembly adopted it. ⁷⁰ It would later become Article 40(4) of the Constitution.

Some delegates supported the provision on the rights of workers to withdraw their labour. They argued that empowering workers to withdraw their labour would enable them to use it as a bargaining strategy to advocate for better working conditions; ⁷¹ and that the constitution would be strengthening an already existing right as the employment law provided for circumstances in which workers could strike. ⁷² It was also argued that the proposal on the right of workers to withdraw their labour should have been amended to provide ‘that every worker has got the right to withdraw his labour’ and ‘to have collective bargaining and representation according to law.’ ⁷³

Others opposed the inclusion on this right in the constitution for different reasons. For example, that there was no need to provide for a constitutional right of the employee to withdraw his/her labour as this right would encourage more strikes and that this issue should have been left to be governed by the contract of employment between the employer and the employee. ⁷⁴ One delegate suggested that this proposed provision should be amended to provide that ‘both the employer and the employed have the right to withdraw from the contract of employment according to the law.’ ⁷⁵ He explained that this was meant to ensure that the employers were also protected and that ‘employers also must have the right to determine the contract with the employee and not only the employee.’ ⁷⁶ However, this proposed amendment was opposed on the grounds that clause 67 dealt with the rights of workers and not employers; ⁷⁷ that the Constitutional Commission had demonstrated that many employers had violated workers’ rights and the purpose of Clause 67 was to minimise and end these violations; ⁷⁸ the amendment would have undermined workers’ right to bargain for better working conditions; ⁷⁹ and that it might motivate some investors to exploit workers by paying them meagre salaries or wages. ⁸⁰ Since most of the delegates supported the original amendment, it was passed. It is against that background that Article 40 was included in the Constitution. It provides that:

(1) Parliament shall enact laws- (a) to provide for the right of persons to work under satisfactory, safe and healthy conditions; (b) to ensure equal payment for equal work without discrimination; and (c) to ensure that every worker is accorded rest and reasonable working hours and periods of holidays with pay, as well as remuneration for public holidays.

Although some delegates argued that Article 40 should also deal with the issue of paternity leave, this issue was not discussed. However, there is no delegate who opposed it. This implies that legislation providing for paternity leave is not contrary to Article 40 of the Constitution. The drafting history also shows that Article 40(4) is applicable to every woman irrespective of her marital status. It is now important to take a look at how Parliament has operationalised Article 40.

The operationalisation of Article 40

In this part of the article, the author deals with the measures that have been taken to protect the right to maternity leave under Article 40 (4) of the Constitution and section 56 of the Employment Act and the right to paternity leave under section 57 of the Act. The author also deals with the issue of discrimination in the promotion and protection of these rights.

Maternity leave

Article 40(4) of the Constitution provides that ‘the employer of every woman worker shall accord her protection during pregnancy and after birth, in accordance with the law.’ The drafting history also shows that Article 40 is applicable to both married and unmarried women. However, it is silent on paternity leave although some Constituent Assembly delegates had argued that it should also address this issue. The right to maternity leave is operationalised by section 56 of the Employment Act. It states that:

(1) A female employee shall, as a consequence of pregnancy, have the right to a period of sixty working days leave from work on full wages hereafter referred to as “maternity leave”, of which at least 4 weeks shall follow the child birth or miscarriage.

For a better understating of section 56, it is important take a look at its drafting history. Clause 57 of the Employment Bill dealt with the issue of maternity leave. It would later become section 56 of the Act. Clause 57(1) of the Bill provided that:

A female employee shall, as a consequence of pregnancy, have the right to a period of 6 weeks’ leave from work on full wages hereafter referred to as “maternity leave”, of which at least 4 weeks shall follow the childbirth or miscarriage.

Clause 57(2) provided that:

A female employee who becomes pregnant shall have the right to return, within 6 weeks of the date of childbirth or miscarriage, to the job which she held immediately before to [sic] her maternity leave or to a reasonably suitable alternative job on terms and conditions not less favourable than those which would have applied had she not been absent on maternity leave.

Clauses 57 (3) – (6) are identical to section 56(2) – (6) which has been reproduced above and will not be reproduced below. In other words, Parliament never changed them. During the second reading of the Employment Bill, Parliament’s Sessional Committee on Social Services presented its report on the Bill and informed the legislators that it had consulted widely with different stakeholders on ways in which the Bill could be improved. ⁸¹ The Committee mentioned the importance of maternity leave ⁸² and recommended that:

[T]he Employment Bill be amended to give women a maternity leave period of 60 (sixty) working days, as opposed to six fixed weeks, which would include public holidays and weekends, as provided in Clause 57. ⁸³

The Committee also recommended some of the measures that the government should take to sensitise employers about the importance of maternity leave. ⁸⁴ Legislators expressed their views on the Committee’s proposal above. One of them, Dr Byatike, supported the proposed amendment but added that it should be revised to expressly provide that the 60 days are ‘given every 2 years to avoid repeated annual pregnancies.’ ⁸⁵ In response to the above suggestion, one legislator argued that it should be rejected because:

The maternity leave period, which is specified in our report, makes reference to some international conventions, which provide for the 12 weeks, which was mentioned. Unfortunately, Uganda is not yet party to these. But apart from that, this Parliament some time last year passed maternity leave of 60 working days under the UPDF Act and, therefore, it would be more consistent if we also did likewise for this particular bill. On the issue of whether maternity leave should be granted per year, I am glad hon. Byatike is a doctor because he knows very well that there are some cases where family planning or contraception methods may not work very well. Even the best tested are not 100% accurate in that you may accidentally get pregnant. We may also be going into issues of privacy rights because I may decide to give birth every year for three years, in order for me to be free thereafter. Therefore, when we give birth, this is a duty to our nation, for we are procreating. You should even be grateful to us because we are providing more labour. ⁸⁶

In response to the above submission, Dr Byatike argued that Parliament should also be ‘fair to the employers’ when enacting labour laws. ⁸⁷ He added that maternity leave should only be given once every two years ‘to enhance the family planning business.’ ⁸⁸ Another delegate argued that he supported the provision on maternity leave but was concerned that the law appeared ‘to be concentrating on only office people’ and ignored women in the ‘village’ working in the informal (agricultural) sector. ⁸⁹ Another legislator supported the amendment but suggested that women should be sensitised to give birth every after two years. She added that she would have preferred the number of days for maternity leave to be increased to 90 but observed that ‘60 days are good enough.’ ⁹⁰ The Minister of Gender, Labour and Social Development argued that there was no need to increase the number of maternity leave days to 90 because ‘[t]he 60 days for maternity leave are working days so they actually translate into almost 90 days.’ ⁹¹ It was argued that it was important for the right to maternity leave to be protected as some employers dismissed pregnant workers which compelled some of them to conceal their pregnancies. ⁹² It was also suggested that the right to maternity leave should be extended to Members of Parliament since the Rules of Parliament were silent on maternity leave. ⁹³ In response, the Speaker of Parliament said that there was no need for the provision on maternity leave to be extended to Members of Parliament because a pregnant legislator was entitled to the ‘leave of absence’ if she had ‘that problem.’ ⁹⁴ It is against that background that clause 57 was amended and passed unanimously ‘by substituting the words “six weeks” appearing in sub-clauses (1) and (2) respectively, with “sixty working days”.’ ⁹⁵ The amendment was necessary ‘to enable mothers to fully recover from post antenatal conditions and to tender to the new born baby.’ ⁹⁶

The drafting history of Article 40 and section 56 shows the following. One, maternity leave is applicable to married and unmarried women. Two, the minimum period for maternity leave should be sixty working days. Some employers provide for this period in their human resource manuals. ⁹⁷ Any policy to the contrary contrives section 56 of the Act. ⁹⁸ Three, it is only applicable to biological mothers. In other words, it is not applicable to adoptive mothers and to commissioning mothers (in the cases of a surrogacy agreement). ⁹⁹ This is the case although section 1 of the Children Act ¹⁰⁰ defines a parent to mean ‘the biological mother or father or adoptive mother or father of a child.’ These issues (adoptive parents and surrogacy agreements) were not even mentioned during the drafting of Article 40 and section 56. It could also be argued that it does not apply to a surrogate mother unless she is going to be nursing the new born child during the sixty days. The section also does not apply to women who have terminated their pregnancies (abortion) unless the abortion can be classified as a miscarriage. This is understandable since the Constitution of Uganda prohibits abortion ¹⁰¹ and it is also criminalised. The fact that adoptive mothers, commissioning parents, surrogate mothers and those who have committed abortion are excluded from maternity leave raises the question of whether this does not violate their right to freedom from discrimination. This is an issue to which we turn.

The right to equality and freedom from discrimination is provided for under Article 21 of the Constitution. Article 21 states that:

(1) All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.

The Supreme Court held that the list of prohibited grounds under Article 21(3) is closed. ¹⁰² In other words, for a person to succeed in their argument that they have been discriminated against, they have to prove one of the enumerated grounds. Adoptive mothers could argue that denying them maternity leave amounts to discriminating against them on the ground of social status. This will require courts to interpret this ground broadly to include these parents. However, the challenge they are likely to face is that they cannot prove that they are also ‘burdened’ by the pregnancy as biological mothers. This is because under the Children Act, a person can only be allowed to adopt a child after fostering him or her for a period of at least 12 months ¹⁰³ Therefore, the employer could argue that that limitation is permissible under Article 21(4)(c) of the Constitution. Secondly, since abortion is prohibited by the Constitution ¹⁰⁴ and the Penal Code, ¹⁰⁵ a person who commits abortion cannot argue that she should be protected as one who has miscarried. However, this is not the end of the inquiry.

The right to freedom from discrimination is also provided for under section 6 of the Employment Act. Sections 6(1) and (2) prohibit discrimination in employment against Ugandans and migrant workers. They also impose a duty on the employers, the Minister responsible for labour and the Industrial Court to promote ‘equality of opportunities’ in the implementation and application of the Act. Section 6(3) of the Act defines discrimination. It provides that:

[F]or the purposes of this Act, discrimination includes any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, the HIV status or disability which has the effect of nullifying or impairing the treatment of a person in employment or occupation, or of preventing an employee from obtaining any benefit under a contract of service.

The drafting history of the Employment Act shows that section 6(3) was passed without debate. ¹⁰⁶ It is therefore impossible to know why the legislators phrased it that way. However, a literal interpretation of section 6(3) shows that it is different from Article 21(3) of the Constitution in three ways. These differences are that some of the prohibited grounds of discrimination under section 6(3) of the Act are not provided for in Article 21(3) of the Constitution. These include HIV status and national extraction. Secondly, some of the grounds of discrimination which are prohibited under Article 21(3) of the Constitution are absent from section 6(3). These include ethnic origin, tribe, birth, and economic standing. Since the Constitution is the supreme law of the land, ¹⁰⁷ section 6(3) must be interpreted to include all the grounds of discrimination prohibited by the Constitution. Otherwise it would be unconstitutional. Three and related to the above, the list of prohibited grounds of discrimination under section 6(3) is not exhaustive. This is evident from the use of the word ‘includes.’ The effect of this is that it prohibits discrimination on any analogous ground provided that two conditions are met. One, that ground was not expressly excluded by the drafters of the Constitution when drafting Article 21(3). For example, the drafters of the Constitution expressly excluded sexual-orientation as a ground of discrimination under Article 23(1). ¹⁰⁸ This means that courts are very unlikely to interpret section 6(3) as prohibiting discrimination on the ground of sexual orientation. In any case, same-sex marriages are prohibited by the Constitution ¹⁰⁹ and homosexuality is an offence. ¹¹⁰ The second condition is that it has to be shown that the treatment ‘has the effect of nullifying or impairing’ her ‘in employment or occupation, or of preventing’ her ‘from obtaining any benefit under a contract of service.’ For a person to succeed on this ground, she must prove one of the two: either that the treatment has the effect of nullifying or impairing her in employment or occupation; or that the treatment has the effect of preventing her from obtaining any benefit under a contract of service. In the case of adoptive mothers, it could be argued that the effect of section 56 is to prevent them ‘from obtaining any benefit under a contract of service.’ In other words, although they are mothers, they are prevented from enjoying the benefits of maternity leave. The burden should be on the employer to justify why that different treatment is justified. This would require him/her to argue that the Employment Act’s exclusion of this group is justified under section 6(3). He/she must convince court that the differential treatment does not have the effect of nullifying or impairing her in employment or occupation; or preventing her from obtaining any benefit under a contract of service. As demonstrated above, the drafting history of Article 40 and section 56 shows that it was aimed at protecting women who had the ‘burden’ of carrying the pregnancies, who needed time to recover after giving birth and who had to nurse (breast feed) their new-borns. These conditions are not applicable to adoptive and commissioning parents. However, the need to recover is applicable to surrogate mothers and those who have committed abortion. They could qualify for maternity leave on that ground. The challenge is abortion is prohibited in Ugandan law. The employee would have to disguise it as a miscarriage.

As a general rule, the notice under section 56 of the Act does not have to be in writing. This means that, for example, it can be verbal. However, if the employer ‘requests’ written notice, then the employee must submit the same. This is inferred from the use of the word ‘shall.’ However, there is no requirement that the notice must be written or signed by the employee. What is required is that she ‘gives’ the notice. It could, for example, be written by her lawyer. In Birungi v NLS Waste Services, ¹¹¹ the Industrial Court held that a pregnant woman is entitled to maternity leave whether or not the employer approves her application for leave. This is because it is her right. It is unlawful for the employer to terminate an employees’ contract of employment when she is still on maternity leave. ¹¹² Clause 65(1)(e) of the Employment Bill provided that a contract of employment would have been considered terminated ‘where the employee being a woman who has exercised her right to take maternity leave, is refused her right to return to work by her employer, and such termination shall be deemed to take place on the date when such refusal takes place.’ Parliament deleted this provision on the ground that it ‘negate[d] the principle of protecting the woman during her maternity leave.’ ¹¹³ It is now important to take a look at the issue of paternity leave.

Paternity leave

It has been mentioned above that although during the Constituent Assembly debates some delegates argued that Article 40 should also provide for paternity leave, their argument did not succeed. This could be explained by the fact that the delegates thought that this issue was to be addressed by Parliament in the employment legislation. This explains why Article 40 does not provide for paternity leave. The right to paternity leave is provided for under section 57 of the Employment Act. It states that:

(1) A male employee shall, immediately after the delivery or miscarriage of a wife, have the right to a period of four working days’ leave from work yearly herein referred to as paternity leave.

The drafting history of the Employment Act shows that the Employment Bill had not provided for the right to paternity leave. In its report on the Employment Bill, the Sessional Committee on Social Services recommended that:

[T]here was need to provide paternity leave to enable men support the women after child birth. There was a fear expressed by employers that this would result in loss of man-hours, especially men who are polygamous. As a compromise composition, the committee recommends that paternity leave be fixed at a minimum of four working days per annum. ¹¹⁴

It is against that background that this right was introduced during the second reading of the Bill. ¹¹⁵ The draft section 57 provided that:

(a) A male employees [sic] shall immediately after the delivery or miscarriage of his wife have the right to a period of four working days leave from work yearly herein referred to as paternity leave.

The legislator who introduced the above provision argued that it was necessary ‘for fathers to help mothers to fully recover during the post-natal period.’ ¹¹⁶ The legislators’ submissions on the above provision can be categorised into two groups: those who opposed the provision; and those who supported it. Those who opposed it argued that it was open to abuse by the majority of men, for example, by using it to ‘produce’ many children so that they absent themselves from work; ¹¹⁷ it was unnecessary; ¹¹⁸ and it was not clear how the 4 days per year would be calculated in the case of men who father many children a year and those in polygamous marriages (both religious and customary). ¹¹⁹

Those who supported it argued that many employers had started giving paternity leave; ¹²⁰ and that it would enable men to help/support their women after birth. ¹²¹ Some of those who supported the provision also suggested ways in which it could be amended. For example, it was suggested that in the case of polygamous marriages, a man should be entitled to four days for every wife who gives birth; ¹²² the law should ‘penalise’ men who abuse this leave (by not supporting their wives during leave); ¹²³ and four days were not enough ‘at least a week per annum would be okay’ to enable the fathers ‘to make time to bring up the children.’ ¹²⁴ It was also argued that the number of days should be increased from four ‘to five working days so that a person has a solid week and they are comfortable.’ ¹²⁵ However, the argument that the number of days should be increased to more than four was opposed to the ground that ‘the number “four” was discussed and agreed between the workers and employers. So when we bring “five” we shall be bringing another conflict.’ ¹²⁶

In response to the concerns raised above, the Minister of Gender, Labour and Social Development argued that the 4 days were the minimum number of days for paternity leave. It was at the discretion of the employer and the worker to ‘negotiate’ more days in the employment contract. ¹²⁷ She also added that men were expected to use the paternity leave in good faith in supporting their wives. ¹²⁸ However, the Minister’s submissions did not ‘put to rest’ the concerns some legislators had over the clause. For example, one legislator wanted to know if ‘this 4 days’ leave given each time a man receives a child? That means that if I have 10 women and four deliver in 1 year, those are four leave cycles?’ ¹²⁹ In response, the Speaker of Parliament argued that the question was problematic but that ‘[i]f they are your children, you are entitled to leave.’ ¹³⁰ He added that ‘[t]he intention is that the father should be by the bedside of a mother of a child. The question of once a year I think should not bother us as long as you are a father. Suppose you have two wives or three!’ ¹³¹

One legislator suggested that clause 57(a) should be phrased in such a manner that it accommodated polygamous marriages. He proposed that it should be worded as follows ‘a male employee shall immediately after delivery or miscarriage of a wife, not of “the wife”.’ ¹³² He added that this meant that ‘even if you have ten...if any one of them gives birth or has a miscarriage, you are entitled to this paternity leave.’ ¹³³ It was agreed that the correct understanding of clause 57 is that it is applicable to monogamous and polygamous marriages. ¹³⁴

Another issue which arose during the debates on section 57 related to the meaning of ‘wife.’ While most legislators understood the term ‘wife’ to mean a woman who was lawfully married to the man applying for paternity leave, it was not clear whether the provision was applicable to ‘concubines’ as in that case there is no proof of marriage and by implication there is no proof of paternity. ¹³⁵ In response, the Speaker argued that the ‘operating term’ in the clause was ‘paternal’ which did not necessarily have the same meaning as ‘husband.’ ¹³⁶ He added that ‘the issue here is that you are a father. So, it is a question of being a father.’ ¹³⁷ The Speaker added that the most important thing is that you are a father whether or not you are married to the woman who gave birth and that according to the law (that was being debated), ‘[o]nce you become a father then you are entitled to four days.’ ¹³⁸ Another legislator argued that the word ‘wife’ should be interpreted strictly to apply to women who are married according to Ugandan laws. ¹³⁹ However, one legislator opposed this argument on the ground that:

It is known in Uganda that very many girls, moreover some of them before they finish school, are being impregnated and being abandoned by these so-called fathers. So, it is very important for these girls to get attention by the so-called fathers. Therefore, for somebody to just argue in this House that a legal definition of “wife” is what matters in this law, I think it is very unfair and I do not think she is in order. ¹⁴⁰

Since the legislators had failed to agree on the meaning of the word ‘wife’, the Speaker suggested that ‘[s]ince in the principle you agreed to this paternity leave, let us leave it then for the court’s interpretation.’ ¹⁴¹ In other words, the legislators left the question of whether a man who was not married to the woman he had impregnated has a right to paternity leave in the hands of the courts to decide.

Another issue that the legislators dealt with was the time at which the man had to apply for paternity leave. It was suggested that Clause 57(d) should be deleted because ‘[y]ou cannot play God; you cannot give notice of a birth because you do not know. Anything can happen.’ ¹⁴² This view was supported by another legislator. ¹⁴³ However, this view was opposed by another legislator who argued that instead of deleting it, it should be amended to provide that ‘[f]or the purposes of enjoying paternity leave under (a), an employee shall give notice immediately after the delivery or miscarriage of his wife or a wife.’ ¹⁴⁴ It was argued that this would ensure that an employee informs his employer of the commencement of his leave ‘[o]therwise, every employer may decide to implement a law in his own way.’ ¹⁴⁵ One of the legislators argued that employees are required to notify their employers of their intention to apply for paternity leave so that they can make the necessary arrangements. ¹⁴⁶ However, the Speaker opposed this argument on the ground that there was no research to prove that many men were likely to apply for paternity leave at the same time leading to the disruption of many employers’ businesses. ¹⁴⁷ One legislator opposed the notice requirement on the ground that it was impossible to predict with certainty when one’s wife will give birth or miscarry. ¹⁴⁸ He added that if the notice requirement were to be retained in section 57, he would have preferred the deletion of the number of days and rather supported the view that notice shall be given immediately after the wife giving birth or miscarrying. ¹⁴⁹ Since the legislators could not agree on the content or relevancy of the provision, a motion was moved for its deletion and it was deleted. ¹⁵⁰

Since most legislators supported the right to paternity leave, the draft provision had to be refined before it could be included in the Act. The legislators agreed that under Clause 57(c), the word ‘within’ should be replaced with ‘after’ to ensure that an employee enjoyed his 4-day leave. ¹⁵¹ It was also agreed that the word ‘employees’ in clause 57(a) was grammatically incorrect and had to be replaced with the word ‘employee.’ ¹⁵² It was also agreed that there was no need to repeat the 4-day period in subsequent provisions since it was already mentioned in Clause 57(a). It was suggested that Clause 57(b) had to be amended to read that ‘(b), “An employee provided for in (a) above shall be entitled to the payment of his full wages during the said paternity leave. (c) An employee after the paternity leave shall have the right to return to the job.’ The words ‘within 4 days’ had to be deleted because they were redundant. ¹⁵³

The following observations should be made about a combined reading of section 57 of the Act and its drafting history. First, unlike maternity leave which is a constitutional right, paternity leave is a statutory right. This implies, amongst other things, that Article 43 of the Constitution, which provides for the grounds on which a right ‘prescribed’ in the Bill of Rights may be limited, is not applicable to this right. ¹⁵⁴ This is the case although Article 45 of the Constitution recognises the existence of other rights apart from those expressly mentioned in the Constitution. ¹⁵⁵ Therefore, the grounds on which the right to paternity leave can be limited have to be found in the Employment Act and not in the Constitution. Second, under section 57, each time a wife gives birth or miscarries, a husband has a right to paternity leave. For instance, if the man is polygamous and three of his wives give birth in 1 year, he has a right to 12 leave days. However, in his contract of employment, the employer can grant him more days. Some employers indeed grant more days. ¹⁵⁶ However, others grant less than 4 days. ¹⁵⁷ This is contrary to section 57 of the Act. Three, the legislators failed to agree on the meaning of the term ‘wife’ under section 57 of the Act and left it to the courts to interpret. Since Ugandan law does not recognise marriage by cohabitation or by repute, ¹⁵⁸ a wife in section 57 of the Act means a woman who is married according to Uganda’s marriage laws. This means that ‘concubines’ are excluded. Therefore, for a person to qualify for paternity leave, he may be required to prove that he is legally married to the wife or wives who gave birth. This means, inter alia, people should try to register their marriages. However, some employers do not require that a man should be married to the woman who has given birth to his child for him to qualify for paternity leave. ¹⁵⁹ Ugandan law recognises foreign marriages. Therefore, if both a man and woman celebrated their marriage outside Uganda, the man will qualify for paternity leave. However, for a foreign marriage to be recognised in Uganda, it has to comply with Ugandan law. Therefore, people in same-sex relationships do not qualify for paternity leave. This is because Ugandan law prohibits same-sex relationships (Mujuzi, 2009).

As mentioned above, for a man to apply for paternity leave, his wife or wives should have given birth or miscarried. Thus, the man applying for paternity leave should be married to the woman or women who gave birth. This is also the approach taken in some regulations ¹⁶⁰ and policies on paternity leave. ¹⁶¹ In other words, an unmarried man does not qualify for paternity leave. This raises the question of whether this does not amount to discrimination on the ground of marital status. As mentioned above, Article 21 of the Constitution prohibits discrimination on a limited number of grounds. Marital status in not one of them. However, there is room for the argument that ‘social standing’ is broad enough to include marital status. This is because a marriage, amongst other things, shows someone’s social standing. The duty is on the employer to motivate why the limitation is justifiable on one of the two grounds under Articles 21(5) and 43(2)(c) of the Constitution: what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in (or allowed to be done under any provision of) the Constitution. It is very unlikely that this differential treatment can be justified on any of the two grounds. This is especially in the light of National Directive and Objective Principle XIX of the Constitution which provides that ‘[t]he family is the natural and basic unit of society and is entitled to protection by society and the State.’ The drafting history of this provision shows that Ugandans who made submissions to Constitutional Commission understood the concept in broader terms. In other words, it was not limited to marriage. ¹⁶² The Draft Constitution also did not restrict the concept of family to marriage. ¹⁶³ Likewise, when the Constituent Assembly delegates debated the draft Constitution, they did not argue that family was restricted to marriage. ¹⁶⁴ However, they argued that marriage is an important family relationship which must also be protected. ¹⁶⁵ Thus, family is not limited to married people only.

Although there was consensus that an employee has to give notice of his intention to take paternity leave, the legislators disagreed on the question of when such notice shall be given. The result was that Clause 57(d) was deleted. The implication is that the issue of notice is not governed by section 57. It has to be governed by the contract of employment. However, the drafting history of section 57 shows that paternity leave must be given when the employees’ wife has just given birth or is about to give birth – when she needs the man’s support most. Failure by an employer to give an employee leave, including paternity leave, is a misconduct which entitles the employee to terminate his contract of employment. ¹⁶⁶

Conclusion

In this article, the author has dealt with the drafting history of Article 40 of the Constitution and sections 56 and 57 of the Employment Act. This history shows, inter alia, that although the drafters of Article 40 of the Constitution were not opposed to paternity leave, they did not provide for this right in the Constitution. This right has now been provided for under section 57 of the Act. Under section 56, every woman, irrespective of whether she is married, has a right to maternity leave. However, this right does not extend to adoptive parents, commissioning parents and those who have committed abortion. It is argued that there are grounds to justify this differential treatment. The right to paternity leave is provided for under section 57 of the Act. This right is only applicable when the woman who gave birth or miscarried was married to the employee. It is argued that this amounts to discrimination on the ground of marital status. However, the human resource manuals of some employers do not require that the man should be married to the woman in question for him to quality for paternity leave. Some of these manuals also cater for both monogamous and polygamous relationships. ¹⁶⁷ This approach, of accommodating men in polygamous relationships, is supported by the drafting history of the Employment Act.