Huge boost for women's rights in Botswana
Discriminatory customary law ruled unconstitutional
The Botswana High Court has provided a huge boost to the struggle for gender equality in Botswana by striking down a discriminatory customary law that only allowed men to inherit the family home.
In a landmark case, the High Court ruled that the customary inheritance law discriminated against women and so was unconstitutional. Critically, Judge Key Dingake made it clear that discrimination cannot be justified on cultural grounds before rejecting the argument put forward by the Attorney General that Botswana society was not ready for equality - and stressing that judges had a duty to tackle gender inequality
“It seems to me that the time has now arisen for the justices of this court to assume the role of the judicial midwife and assist in the birth of a new world struggling to be born,” said Judge Dingake, urging the governmen to take all discriminatory laws off the statute books. “Discrimination based on gender has no place in our modern day society.”
The case – Mmusi and Others v Ramantele and Others - challenged a Ngwaketse customary law that grants the youngest born son the right to inherit the family home, which clearly violates the right to equality enshrined in Section 3 of the Botswana Constitution.
At issue was the claim by Edith Mmusi and her two sisters, all of whom are over 65 years old, that they have lived in the family home and have spent their money on improving the homestead and thus should inherit it. Their claim was being challenged by their nephew based on the discriminatory inheritance law.
"This landmark decision sets a clear precedent and sends a very strong signal that women in Botswana cannot be discriminated against and that the days of women suffering from secondary status under the law in Botswana are drawing to an end,” said Priti Patel, Deputy Director of the Southern Africa Litigation Centre (SALC), which supported the case.
While the gender gap in Botswana is narrower than in most other southern African countries, this ruling will help to tackle some of the significant legal, economic and cultural hurdles that still confront women in the country today.
“We are celebrating the best possible judgement - and a major victory for women,” said Patel. “This is a significant step forward for women's rights not only in Botswana but in the southern Africa region, where many countries are addressing similar discriminatory laws.”