November 5, 2012
This month in Botswana, four elderly sisters get to breathe a sigh of relief.
Due to a bombshell judgment from the Botswana High Court, they were able to stave off an eviction from their home by other family members.
These women are not unique. Throughout southern Africa, women are dispossessed of property when their fathers or husbands die. However, what makes their situation remarkable is that when confronted with dispossession, they went to court and won.
The case brought by the four sisters challenged a local customary law rule that mandated that the family home, which in most cases is the bulk of the estate, went to the youngest son.
However, in this particular family, the youngest child was a woman, one of the applicants. The law though was clear: women did not inherit the family home under this regime.
The four sisters who had all lived on the property at various times, and had claimed they had assisted in renovating and expanding the home, challenged the rule, arguing that it violated their right to equality under the Botswana Constitution.
The attorney-general of Botswana had been asked by the court to present the government’s arguments in the matter.
October 9, 2012
On Thursday, the Botswana High Court will issue judgment in Mmusi and Others v Ramantele and Others, a case challenging a customary law rule providing for male only inheritance of the family home. The judgment will address whether a rule which clearly discriminates against women violates the right to equality enshrined in the Botswana Constitution. The Court had requested the Attorney-General’s intervention in the matter. The Attorney-General argued that regardless of the fact that the rule was discriminatory, Botswana society was not ready for equality and thus the unequal rule must stand.
SALC will provide live updates from the courtroom via twitter (@Follow_SALC) on Thursday.
Yesterday, the High Court in Botswana heard final arguments in a case challenging the Ngwaketse customary law rule which permits only for male inheritance of the family home. Previously, the Court had formally requested the Attorney General to make submissions in the matter. Yesterday was scheduled to hear oral submissions from the Attorney General and the responses of the applicant and 1st respondent to those submissions.
However, in the end the advocate representing the Attorney General spoke for 3 minutes, merely saying that though the rule was discriminatory, such discrimination was provided for under the Constitution and thus the rule should be upheld. He then relied on his written submissions.
So what did the Attorney General say in her written submissions? Basically, that the rule may be discriminatory but that it was still constitutional. She argues that there are two articles in the Constitution which protect against discrimination: section 3 which guarantees equal protection and section 15 which protects against discrimination on the basis of sex. The applicants rely only on section 3 in making their arguments because section 15 does protect against discrimination on the basis of sex, but then under section 15(4)(c) which provides for an exception to matters involving devolution of property upon death. The Attorney General argues that you cannot separate section 3 and section 15 and that the exceptions under section 15 should apply to claims under section 3.
However, there is significant case law supporting the contrary–that the exceptions under section 15 only apply to claims under section 15. For example, the Court of Appeal in Attorney General v Dow, noted that the exceptions under section 15 only applied to section 15. This has been followed by numerous courts in Botswana since, including the High Court in Kamanakao I v Attorney General and the Industrial Court in Moatswi and Another v Fencing Centre (Pty) Ltd.
This though was the primary issue in which the Judge was interested having raised it at the initial oral arguments and again yesterday. It was unclear by the end of the day which way this case is going, but we expect a decision later this year.
On Thursday, the High Court will hear further arguments in Mmusi and Others v Ramantele and Another, a case challenging the Ngwaketse customary law rule providing only for male inheritance of the family home. As followers of the case will remember, the High Court heard initial arguments in the matter on 14 May 2012. At that time, Judge Oagile Dingake formally requested the Attorney General to weigh in on the matter. On 12 June 2012, the Attorney General filed her submissions. In the submissions, she argued that Botswana society was not ready for equality between men and women and thus the discriminatory customary law rule should be upheld. The applicants filed supplementary heads of argument responding to these claims.
Tomorrow, both parties will present their oral submissions to the High Court. Arguments will start at 9:30am, though if past experience is any indicator it is likely arguments will start later. You can follow live updates from the arguments on SALC’s twitter feed (@Follow_SALC).
On Monday, the Botswana High Court will hear arguments in Mmusi and Others v Ramantele and Another, a case challenging a customary law rule denying daughters the right to inherit the family home.
At issue in the case is a Ngwaketse customary law rule which provides that the youngest son inherits the family home. The applicants argue that this rule denying them the ability to inherit their family home violates their right to equality under section 3 of the Botswana Constitution. They further claim that the daughters have all assisted in the upkeep and expansion of the family home and thus should be permitted to inherit it.
The respondents argue that though under the Ngwaketse customary law the youngest son inherits the family home, the daughters are still permitted under the law to inherit other aspects of the estate, such as the household utensils and goods. They further argue that even if this rule is found to infringe the right to equality, the violation is justified as this is the cultural rule within the community.
The case is an appeal from a decision of the Customary Court of Appeal, which applied the customary law rule, finding the applicants could not inherit the family home.
The case before Justice Dingake will address whether the Ngwaketse rule is an infringement of the Botswana constitution and if so, whether that infringement is justified. Arguments will start at 9:30am at the High Court of Botswana in Lobatse. You can follow live updates from the arguments on SALC’s twitter feed (@Follow_SALC).
Local papers in Malawi are reporting that Former President of Botswana Festus Mogae and Former Zambian President Kenneth Kaunda have denounced the criminalization of same sex relationships in Malawi and the rest of southern Africa. The remarks were made in a visit both made on behalf of the Champions of HIV free Generation to Malawi. Mogae argued that criminalizing same-sex relationships only serves to further exacerbate the HIV epidemic by driving a key population underground. He further noted that men go into prisons in Botswana without HIV and come out HIV positive, implying that men have unprotected sex with men while in prison. Given that, he called on countries to provide condoms in prison to help stem the HIV epidemic. Kaunda made the point that most countries in Africa already face overcrowded prison populations where individuals are detained and convicted for much more serious crimes, that criminalizing private sexual behavior is a waste of resources.