Court to rule on Constitutionality of Tswana law
by Ditiro Motlhabane
Gender and human rights activists are waiting with baited breath for a High court decision on an application by four women from Ngwaketse district challenging the constitutionality of a common Setswana cultural practice in administration of estates of deceased parents in a ‘stated case’ presented before Justice Dr Key Dingake recently.
The quartet wants court to order that the rule of male primogeniture, which permits only male offspring from intestate inheritance, violates their right to equal protection under section 3(a) of the Constitution of Botswana.
The applicants, who are sisters, are Edith Mosadigape Mmusi, Bakhani Moima, Jane Lekoko and Mercy Kedidimetse Ntshekisang in that order. Mmusi and her sisters are arguing that they should be entitled to inherit the family home as they have contributed to its upkeep and expansion.
Mmusi’s parents had one son and four daughters. Her father had another son from a previous relationship with another woman. At some point prior to the distribution of the inheritance, the youngest son entered into an agreement with his half-brother, Segomotso, to give Segomotso the family home. Both brothers passed away before the distribution of the inheritance. Now, Segomotso’s son, the respondent, Molefi Selabo Ramantele, is claiming ownership over the family home arguing that his father was promised the family home under an agreement and that home would now pass onto him.
The siblings are challenging the ruling of the Customary Court of Appeal of September 2010, which overturned an earlier decision of Kgosi Lotlaamoreng II of Borolong concerning the estate of their parents.
“We submit section 18(2)(b) permits the Court to overturn the decision of the Customary Court of Appeal on the basis that it violates the applicants’ right under section 3(a) of the Constitution. Alternatively, section 18(2)(b) permits the Court to strike down the customary law rule of male primogeniture as violating the applicants’ rights under section 3(a) of the Constitution,” reads their papers.
A lower customary court had in 2007 heard and determined the dispute concerning the inheritance in favour of the respondent. The Customary Court of Appeal accepted the respondent’s version that the home was inherited by the last born son of the applicants’ parents, Banki Modiegi Ramantele, in accordance with the Sengwaketse culture, and that he, Banki, passed on “ownership” to respondent’s father. It is on that basis that the respondent argues that he is entitled to inherit the said property to the exclusion of the applicants.
Kgosi Lotlaamoreng would later advise the parties to convene a meeting and identify one child to look after the home on behalf of the elders. That is, the home belonged to all the children. His decision was overturned by the Customary Court of Appeal on the basis that in Sengwaketse culture and traditions, “if the inheritance is distributed, the family home is given to the last born child”. Like in the earlier judgment, Mmusi was therefore ordered to vacate the family home within three months.
The applicants then launched the current application wherein they argue that the said rule of Customary Law is unconstitutional on the basis that it violates their right to equal protection of the law or equality in terms of section 3(a) of the Constitution of Botswana.
The right not to be discriminated against under section 15 of the Constitution has also been referred to for comparison purposes. The applicants further submit that court should rule that the Customary Law principle by which the right of inheritance belongs to the youngest son is unconstitutional in that it violates section 3(a) of the Constitution of Botswana.
“This Court is empowered to make such orders, issue such writs and give such direction as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 3 to 16 (inclusive) of this Constitution,” read part of the applicants’ affidavit.
Both parties agree that Ngwaketse customary law applies to the situation and that under that law, the family home is inherited by the youngest son. However, Mmusi and her sisters argue that the male-only law violates their right to equality because, under the customary law rule as articulated by the Customary Court of Appeal, women, regardless of where they are in the birth order, would be categorically denied intestate inheritance as opposed to their brothers.
“We submit this blanket ban on all women from intestate inheritance as articulated by the Customary Court of Appeal is an infringement on the applicants’ right to equal protection of the law as it treats similarly-situated persons differently.”
They cite extensively from the seminal discrimination case of Attorney General vs Unity Dow and the Kamanakao I vs Attorney General judgments in support of their arguments. In addition, they point to a number of decisions in other countries in Africa, including South Africa, where discriminatory customary laws have been brought in line with the Constitution.
Finally, the applicants 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.
Botswana has conceded unequal inheritance rights in her 2008 submission to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which Botswana acceded to in 1996. Other statutes which demand equality before the law are The International Covenant on Civil and Political Rights (ICCPR) ratified by Botswana in 2000, The African Charter on Human and Peoples Rights ratified in 1986.
On the other hand, Ramantele argues that this customary law rule is not unequal because though the family home is reserved for the youngest male child, other aspects of the estate are inherited by female children, including the household goods, such as utensils and pots. He further argues that even if the court finds that the rule does infringe the right to equality, such infringement is justified as it is not prejudicial to women.
Ramantele argues that under Ngwaketse customary law, there is no blanket ban on women inheriting interstate, and also that the customary court of appeal did not apply the principle of male primogeniture in awarding the family home to the last born male descendant of the deceased but applied Ngwaketse customary law, which applies different principles from those of the male primogeniture in the context of customary law inheritance.
Citing numerous judgments from local courts, Ramantele concludes that the principle of male primogeniture as applied in the context of customary law of inheritance does not form part of the Tswana customary law in general nor does it form part of the Ngwaketse customary law. To support his argument he quotes Prof Schapera’s 1938 A Handbook of Tswana Law and Custom, to demonstrate that under customary law of inheritance women have always had a right to inherit interstate from their deceased ancestor.
Ramantele, through his lawyers, further warns that importing the interpretation of the right to equality from different jurisdictions without adaptations would accord such right a distorted meaning totally removed from local circumstances.
“In the area of inheritance in Botswana the legislator has introduced legal reforms in the form of statutes which put women’s right…almost on par with that of a man. The right to equality is not absolute. A differentiation between individuals does not automatically mean that section 3(a) has been violated because such may be justifiable as provided for in the constitution,” he posits.
Judgment has been reserved.
The Southern Africa Litigation Centre (SALC) is offering technical assistance in support of the application.
Recently the SALC was involved in a similar case in Lesotho challenging women’s right to succeed to chieftainship in that country. SALC intervened as amicus curaie, friends of the court, in the matter, arguing that the law not only violates the applicant’s rights under the Lesotho Constitution but Lesotho’s regional and international law obligations.
The regional human rights advocacy group also recently made headlines winning a ruling that South Africa could investigate atrocities in Zimbabwe, the first case in South Africa to be brought under the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, heard by Judge Hans Fabricius in the Pretoria High Court.