The Botswana government will be thrown on the back foot when she appears before the Human Rights Council in February 2013 for its second cycle of the Universal Periodic Review (UPR), because of a decision by the High Court last week declaring the customary law on inheritance of a family home discriminatory and unconstitutional.
In the first UPR review in 2008, the Human Rights Council had recommended that Botswana increase efforts to raise awareness of the precedence of constitutional law over customary laws and practices to promote gender equality.
Botswana rejected the recommendation insisting that customary law is not in conflict with constitutional law, a position expressed by the Attorney General in the recently decided case. The Human Rights Council had also recommended that Botswana adopt measures necessary for harmonising customary laws with international instruments to which Botswana replied that it does not consider its customary law to be in conflict with international instruments, and therefore does not accept the recommendation. To this end Ditshwanelo says Dingake’s judgment last week is particularly timely as Botswana will be appearing before the Council. It would be interesting to note what position Botswana would assume at the UPR meeting in three months.
Ditshwanelo- the centre for human rights have welcomed the High Court decision last week declaring the Ngwaketse customary law on inheritance of a family home unconstitutional. In a statement Wednesday Ditshwanelo-who supported the applicants by sourcing funding for litigation, said the ruling clearly indicates that the customary law inheritance rule which allows for male-only inheritance of the family home by the youngest-born son, is not in conformity with either the Constitution of Botswana or international instruments to which Botswana has committed herself.
In a landmark judgment, resembling the Unity Dow case, the High Court last week ruled that the customary law practice that bars women from intestate inheritance of the family home of their deceased parents is unconstitutional.
In a scathing attack on the contested customary law Justice Key Dingake ruled that the gross and unjustifiable discrimination visited on women cannot be justified on the basis of culture. He said the contested customary law implies that women are lesser beings than men, and are in fact inferior to men. “The Ngwaketse customary law rule that provides that only the last born son is qualified as intestate heir to the exclusion of his female siblings is ultra vires Section 3 of the Constitution of Botswana. It has no place in a democratic society that subscribes to the supremacy of the Constitution that entrenches the right to equality” he said.
In an analysis of the Ngwaketse customary law Justice Dingake found that it unfairly discriminates against women based on the gender. He dismissed submissions by the respondent and the Attorney General that the discrimination was justified because the family home remains available for use by other siblings for hosting functions like family gatherings, weddings and funerals. The Attorney General- headed by a reputable women rights activist Athaliah Molokomme had argued that it would be absurd to declare the discriminatory customary law unconstitutional because such law is recognized or practiced by the overwhelming majority of the population of Botswana. Dismissing arguments by the Attorney General Dingake said it boggles the mind how the creation of an equal society in terms of rights can be prejudicial to anybody or be contrary to public interest.
“There is no legitimate government purpose to be served by the discriminatory rule. The fact of the matter is that the law is not only but amounts to unjustifiable assault on the dignity of women generally,” said Dingake further noting that the effect of the customary law is to subject women to a status of perpetual minority, placing them automatically under the control of male heirs simply by virtue of their sex.
He said the customary law is unjustifiably discriminatory and does not pass constitutional scrutiny.
Dingake pointed out that there is an urgent need for parliament to abolish all laws that are inconsistent with Section3 (a) so that the right to equality ceases to be an illusion or a mirage. “But where parliament is slow to effect the promise of the constitution, this court being the foundation of justice and the guardian of the constitution would not hesitate to perform its constitutional duty when called upon to do so.” He also called on the courts to do their part.
He said: “It seems to me that the time has come for the justices of this court to assume the role of the judicial midwives and assist in the birth of a new world struggling to be born, a world of equality between men and women as envisioned by the framers of the constitution.”
Four elderly women from Ngwaketse district challenged the constitutionality of the Setswana cultural practice before judge Justice Key Dingake arguing that the rule of male primogeniture, violates their right to equal protection under Section 3(a) of the Constitution of Botswana. The sisters are Edith Mosadigape Mmusi, Bakhani Moima, Jane Lekoko and Mercy Kedidimetse Ntshekisang.
One of the sisters, Mercy Ntshekisang, told Sunday Standard that they have spent sleepless nights because of the case praying that the High court rules in their favour. “Our parents’ inheritance was never divided between us their children after they passed. Our only hope was that we be given custody of our mother’s home. We are very happy with the decision because our prayers have been answered,” she said adding that they have been stressing over where to take their property should court rule against them.
The sisters had argued that they should be entitled to inherit the family home as they have contributed to its upkeep and expansion. In his judgment Dingake also overturned all other decisions of the lower courts and the Customary Court of Appeal that had found in favour of Ramantele accordance with the Sengwaketse culture.
Attorney Tshiamo Rantao who represented the family was over the moon.
“This is the second most important constitutional decision I have seen after the Dow case. I am happy not only for my clients but for all the women in the country who are now protected by law from inequalities visited on them by discriminatory customary laws,” he said.
Mmusi and her sisters argued that the male-only law violates their right to equality because under the customary law, 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 is an infringement on the applicants’ right to equal protection of the law as it treats similarly-situated persons differently.”
In support of their arguments the sisters cited the discrimination case of Attorney General vs Unity Dow. They also pointed 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. The applicants pointed out 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.
Justice Dingake reiterated that human rights are universal and can no longer be understood within the straight jacket of domestic law.
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.
The Southern Africa Litigation Centre (SALC) who extended technical support for the applicants said they are very happy with the judgment.
“We are very happy with the decision. It is a step forward in terms of women’s rights in Botswana and the region where a lot of countries are still struggling with discriminatory customary law. It is a real standard by which other countries can assess their discriminatory laws,” said Priti Patel in an interview outside court.
Patel further told Sunday Standard that they are awaiting judgment in a similar case in Lesotho challenging the constitutionality of barring women to succeed to chieftainship in that country.
SALC intervened as friends of the court 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 won 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.