Botswana: Striking the Balance between Customary Law and Gender Equality
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In October 2012, the High Court of Bostwana passed a landmark decision that struck down a customary law that denied women the right to inherit on the ground that it was contrary to the Constitution of Botswana. The provision that was held unconstitutional was a customary law rule that provided that, in matters of intestacy (where there is no will), the last-born son of the deceased inherits the family property and daughters, regardless of their birth position within the family, may not inherit.
This marks yet another progressive decision in favor of gender equality, in line with a recent trend in many African countries to prioritize constitutional non-discrimination provisions over customary law in the area of land rights. Importantly, the decision improves security and independence for women and girls, including traditionally disenfranchised populations, such as widows and orphaned girl children, who may otherwise find themselves dispossessed of property in favor of male relatives and then be left vulnerable to exploitation and poverty.
Ms. Edith Mmusi and her three sisters brought this case to court to dispute their nephew’s claim to their deceased father’s home and demand that they vacate it. Their nephew, Mr. Molefi Ramantele, argued that he had a right to inherit the property and evict his aunts because his father had been the last-born male child of the deceased and was entitled to the family home under Ngwaketse customary law. . The Customary Court and Customary Court of Appeal had ruled in favor of Mr. Ramantele. The sisters then filed an appeal with the High Court, where Justice Oagile Dingake heard the case.
The High Court examined Ms. Mmusi’s claim in the light of section 3(a) of Botswana’s Constitution, which “guarantees every person in Botswana fundamental rights and freedoms without distinction as to their race, place of origin, political opinions, colour, creed or sex.” It considered whether the customary inheritance rule was a violation of the right to equality and, if so, whether there was any legitimate justification for this inequality. In doing so, it looked to Botswana’s international and regional obligations as well as examples from other jurisdictions, such as Ghana, Kenya, Tanzania, and South Africa, that had dealt with similar issues of discriminatory customary laws in conflict with constitutional equality provisions.
The Court stated, “The [Ngwaketse Customary] law is biased against women, with the result that women have limited inheritance rights as compared to men; and the daughters living in their parents’ homes are liable to eviction by the heir when the parents die…. This gross and unjustifiable discrimination cannot be justified on the basis of culture.” Additionally, it explained, “What is particularly objectionable about the law sought to be impugned is its underlying message, that implies, that women are somehow lesser beings than men, and are in fact inferior to men. The adverse effects of the above status that results in daughters being evicted to pave way for a male heir, communicates the unacceptable and chilling message that men and women are not equal before the law.” As such, the Court held that “the law sought to be impugned violates the right to equality and equal protection of the law as provided for and or contemplated by Section 3 (a) of the Constitution.”
In concluding, the High Court noted “that there is an urgent need for parliament to scrap/abolish all laws that are inconsistent with Section 3 (a) [of the Constitution] so that the right to equality ceases to be an illusion or a mirage, but where parliament is slow to effect the promise of the Constitution, [the High Court], being the fountain of justice and the guardian of the Constitution, would not hesitate to perform its constitutional duty when called upon to do so.” In so doing, the Court recognized the need to prioritize equality when balancing customary law and constitutional law. It also opened the field for equal land rights for all women and girls in Botswana; indeed, the decision may impact up to 90 percent of the country’s population.
 Mmusi v. Ramantele, ¶91.
 Id. ¶200.
 Id. ¶202.
 Id. ¶203.
 Id. ¶218.
 South African Litigation Centre, SALC in the News: Courts Signal a Sea Change for Women in Africa, November 5, 2012, http://www.southernafricalitigationcentre.org/2012/11/05/salc-in-the-news-courts-signal-a-sea-change-for-women-in-africa/.