Landmark women's rights case in Botswana

High Court to rule on discriminatory inheritance law

Richard Lee's picture

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Strategic communications for WWF

October 10th, 2012

Everyone interested in women’s rights in Botswana will be watching the High Court in Gaborone on the 12th October to see how it rules in a landmark case challenging a customary law that only allows for male inheritance of the family home.

The case – Mmusi and Others v Ramantele and Others - challenges a discriminatory 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 the Botswana Constitution.

“Women’s equality is long overdue in Botswana. This landmark decision will determine whether Botswana is serious about ending discrimination against women or whether women will continue to have a secondary status under the law in Botswana,” said Priti Patel, Deputy Director of the Southern Africa Litigation Centre (SALC), which is supporting this ground-breaking case.

At issue is 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 is being challenged by their nephew who claims his father was given the home by the youngest born son.

At the heart of the matter is whether the customary law rule violates Mmusi and her sisters’ right to equality under section 3 of the Constitution in that it denies them the inheritance of the family home primarily on the basis that they are women.

Asked to intervene by the Court, the Attorney-General argued in response that – despite the discriminatory nature of the customary law – Botswana society was not ready for equality and thus the rule should stand.

However, the sisters point to decisions in other countries in Africa, including South Africa, where discriminatory customary laws have been brought in line with the Constitution – and argue that Botswana – under its international and regional law obligations – has agreed to eliminate all forms of discrimination against women and thus this rule should be brought in line with those legal obligations.

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