Prior to that, Botswana had to defend some of its customary laws against a detailed questionnaire filed with the government by the United Nations experts on human rights. The experts had argued in their questions that government prior to Presidential Minister Kabo Morwaeng and his delegation appearing before the United Nations committee last week some of the country’s customary laws should be abolished as they were incompatible with human rights practices.
In a wide ranging response to the United Nations’ questionnaire, Botswana argued in a new report that customary laws play an important role in Botswana. However, the Constitution takes precedence over the Bogosi Act, which is an Act of Parliament governing the administration of customary law in Botswana.
Botswana says any customary practice that is unconstitutional is repealed by the Courts as it has been demonstrated in the Ramantele case. In this case, the Court of Appeal of Botswana upheld and strengthened the High Court’s decision that “Constitutional values of equality before the law, and the increased leveling of the power structures with more and more women heading households and participating with men as equals in the public sphere and increasingly in the private sphere, demonstrate that there is no rational and justifiable basis for sticking to the narrow norms of days gone by when such norms go against current value systems.”
Botswana also cited a comment by President of Court of Appeal Ian Kirby when he noted that, “Any customary law or rule which discriminates in any case against a woman unfairly solely on the basis of her gender would not be in accordance with humanity, morality or natural justice. Nor would it be in accordance with the principles of justice, equity and good conscience.”
According to the report, positive steps continue to be taken to harmonize customary law practices with international law, including the provisions of this covenant. Section 15(4) of the Constitution ferments a fundamental contradiction to the Covenant with regards to deterring discrimination.
“However, there has been enactment of laws such as the Domestic Violence Act and the Abolition of Marital Power’s Act (among others) which are aimed at eradicating discrimination against women. The Law Reform Unit is also expected to spearhead the amendment of laws (including the Constitution) which are not consistent with the provisions of the Covenant, including those that are detrimental to women’s rights,” the report says.
The report says the Botswana Government continues to heighten awareness against some customary laws and practices, which continue to affect gender equality especially in areas related to personal law and family law.
“Public education and training targeted to the public, Dikgosi, judges, prosecutors and lawyers has been conducted. With regard to the public, awareness is raised by cascading new policies and laws to the public through Kgotla meetings, radio and television programs addressed by Members of Parliament and various Government Officials,” the report says.
The report says, in order to better equip prosecutors, judges and lawyers, various training sessions have been conducted on migrant smuggling, trafficking in persons and related offences, child law and sexual offences, cybercrime, forensic medicine, admissibility of evidential material, child pornography and related offences, as well as trial advocacy.
The report says in collaboration with UNDP and the Department of Gender Affairs, the Department of Tribal Administration embarked on a training programme to train all Dikgosi on GBV across the country. So far, a total of 115 Dikgosi have been trained, 36 being from Chobe, 45 from Kgalagadi North while 34 are from Kgalagadi South. The next phase will cater for North East, Central, Southern and North West parts of the country. The aim is to train all the 670 Dikgosi before the end of 2020.
Regarding some customary practices that could be detrimental to the rights of women, Botswana says the Constitution of Botswana generally recognises the equality of women and men before the law, and section 15(1) thereto provides that no law shall make any provision that is discriminatory either of itself or in its effect.
“In this regard gender equality is a key principle that is embraced in national laws, policies and planning frameworks. However, Section 15 (4) of the Constitution provides a deliberate derogation from the latter in order accommodate customary law, which is part of the dual legal system in which customary law exists alongside the Common Law. Most Batswana conduct their marriage and family affairs in accordance with customary law, with a few using the common law,” the report says.
It is in light of the aforementioned that Botswana has not as yet repealed the provisions of section 15(4) of the Constitution as recommended by the Committee, the report says.
“However, there have been legislative developments to promote and uphold gender equality. Laws which have been legislated to uphold gender equality include: the Married Persons Property Act (2014) which allows married couples to review their property regime, the Domestic Violence Act (2008) which recognizes violence occurring within the home as an offence,” the report says. It says Domestic Violence Regulations (2013) which facilitate effective implementation of the Domestic Violence Act, the Penal Code which criminalises sexual activity with any person below 18, the Abolition of Marital Power Act (2004) which gives married couples equal power to administer the joint estate and the Deeds & Registry Act was amended in 2008 thus attaining equality in the administration of the joint estate by both spouses.
“Although inheritance issues exist within Botswana, efforts are made to educate the public against inheritance practices that deprive women and children of their inheritance rights. The Courts (both Customary and Civil) continue to deliver judgments that protect the inheritance rights of women and children against patriarchal based efforts to take the same away,” the report notes.
It says the civil society organisations support Government in educating the public that both men and women have equal inheritance rights.
“Worth mentioning in this regard is Re A Nyalana Society which was registered in 2012 with objectives to, among others, support amendments of discriminatory customary practices and protection of inheritance rights of women and children. Re A Nyalana has helped many couples to legally register their marriages, including those of elderly couples who had undergone traditional marriage rites of Bogadi and lived together as common law husband and wife over many years,” the report states.
It says civil registration of such traditional marriages has helped to secure the property and inheritance rights of women and children, who often times were deprived of the same during separation or death of the male spouse. The Ramantele case mentioned above is also worth of noting in so far as it established equality of male and female children in inheriting their parents’ property, the report says.
“Public awareness on the need to align customary laws and practices with the provisions of this Covenant continues to be raised. In this regard, since 2012, the Government has been engaging Dikgosi in ensuring that there is no discrimination on matters of marriage, divorce, equality of property and other legal rights of spouses,” says the report.
It says in November 2015, Dikgosi developed a National Action Plan on Mainstreaming Gender into the Customary Justice System. The Plan was reviewed in 2018 and Dikgosi continue to implement this revised plan to address gender issues within their communities. Government has also developed public education materials specifically on the concept of gender equality and translated these into the local language.
Botswana says it recognises that to attain gender parity, there is need to engage men and boys as strategic partners.
“To this end, the Men Sector continues to undertake various activities including community dialogues across the country. To strengthen this initiative, Botswana has been commemorating International Men’s Day since 2013, and in the following year, launched the ‘HeforShe’ Campaign. The International Men’s Day is aimed at celebrating men’s positive contribution to society, community, family, marriage, and child care, and to improve gender relations and promote gender equality,” the report says.
Botswana says it continues to implement court decisions giving beneficiaries their rights and consultations are ongoing with a view to review and reform national laws to address discrimination of all people, including refugees, lesbians, gays, bisexuals, trans-gender and/or intersex (LGBTI) persons, domestic workers, sex workers, asylum seekers and foreign inmates.
