Connect
Avon Global Center for Women and Justice at Cornell Law School - Green Background

Country Details

Botswana

  • Mmusi & Others v. Ramantele & Another, Botswana, Botswana High Court, 2012.
    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. 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 found that the customary inheritance rule was a violation of the right to equality and there was no legitimate justification for this inequality.
  • S v. Matlho, Botswana, Court of Appeal, 2008.
    The appellant challenged the sentence for rape under the sections of the Penal Code that set forth mandatory minimum sentences for rape charges depending on circumstances such as the perpetrator's use of violence or the perpetrator's status as being HIV positive.   The appellant was convicted on two counts of rape and sentenced to the mandatory minimum sentence of 10 years for each count, resulting in a total of 20 years imprisonment.  The Court upheld the conviction, noting that although it was undeniably severe, it was not disproportionate to the offense, especially in light of the increase in the incidence of rape in Botswana and the heinous nature of rape itself
  • Masusu v. Masusu, Botswana, High Court, 2007.
    The appellant-wife sought and was granted a divorce from her husband on the grounds of domestic violence and that he did not financially support her or their two children.   The wife appeals a decision by the Customary Court of Appeal granting the house to the respondent-husband on the ground that under customary law, a wife who divorces her husband is at fault as a wife is supposed to remain in her marital home regardless of her husband's actions. The High Court found that the Customary Court's reasoning discriminated against women because it automatically faulted the wife for filing a divorce no matter what her husband did and ordered the marital home be sold and the profits given to the appellant-wife.   
  • S. v. Ketlwaeletswe, Botswana, High Court, 2007.
    The appellant was found guilty in magistrates court of raping a 10 year old girl and sentenced to 10 years in prison.  He appeals on the question of whether sexual intercourse with a girl of that age should be considered as rape or "defilement" because rape requires a lack of consent while the Penal Code defines defilement as carnal knowledge of anyone under the age of 16. The High Court held that, in accordance with the principle followed by the common law in South Africa incorporated by Botswana, a girl under the age of 12 is deemed incapable of consenting to intercourse and therefore intercourse with any person under the age of 12 is deemed rape. 
  • Sekoto v. Director of Public Prosecutions, Botswana, High Court, 2007.
    The appellant appeals his conviction for the murder of his live-in girlfriend and his sentence of 12 years imprisonment.  The Court upheld the sentence, noting the increasing incidence in Botswana of former lovers killing their partners and opining that the courts should impose appropriately stiff sentences as a deterrent. 
  • Mogodu v. State, Botswana, High Court, 2005.
    The appellant appeals his conviction for rape in the subordinate court of the first class for the North West Magisterial District on the grounds that the evidence did not show lack of consent but that the sexual intercourse between the appellant and the complainant was consensual.  The Court upheld the conviction on the grounds that the evidence showed that the appellant forced the complainant to have intercourse with two other persons and so was guilty of aiding and abetting in a rape which is treated as rape under the law.  
  • Makuto v. State, Botswana, Court of Appeal, 2000.
    The appellant is appealing his conviction for rape arguing that the Penal Code sections dealing with rape are discriminatory in so far as they provide stiffer penalties for a person convicted of rape if they are found to be HIV positive.  The Court held that the relevant provisions of the Penal Code apply when the convicted person was HIV positive at the time he committed the rape and that it is therefore a reasonable provision in order to combat the spread of HIV/AIDS.   
  • Attorney General v. Unity Dow, Botswana, Court of Appeal, 1992.
    The respondent, Ms. Unity Dow, brought a case to the High Court of Botswana asserting that sections 4 and 5 of the Citizenship Act violated her right to equal protection of the law and protection from discrimination on the basis of sex because the sections of the Citizenship Act treated children differently depending on whether they were born to citizen mothers or to citizen fathers.  The Court of Appeal upheld the High Court's decision in finding that the Citizenship Act did discriminate on the basis of gender under both the Botswana Constitution and the Declaration on the Elimination of Discrimination Against Women because it essentially punishes a citizen female for marrying a non-citizen male.