The High Court in Gaborone has ruled in favour of four women who challenged Ngwaketse customary law that states that only males can inherit family property.
In his judgement passed Friday morning, Justice Key Dingake said there is an urgent need for Parliament to scrap or abolish all laws that are inconsistent with the constitution, which does not allow discrimination on the basis of gender.
He emphasised that when parliament is slow to effect the promise of the constitution, the courts, which are the fountain of justice and the guardian of the constitution, will not hesitate to perform its constitutional duty when called upon to do so.
Four sisters, Edith Mmusi, Bakhani Moima, Jane Lekoko and Mercy Ntshekisang, had brought the case before the court challenging a customary law that only allows males to inherit the family home.
The house in which they are staying had been claimed by their nephew, saying it had been passed on to his father.
The sisters had argued that they have lived in the family home and have spent their money on improving the homestead and thus should inherit the house.
When passing judgement in their favour, Justice Dingake ruled that the Ngwaketse Customary law is in violation of their rights, enshrined in the constitution and it further violated the applicant’s right to equal protection of the law.
Dingake stated that the Ngwaketse Customary law was discriminatory.
“It seems to me that the time has now arisen 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,” said Dingake.
Dingake further set aside the Customary Court of Appeal, which entertained the Ngwaketse Customary law that demanded the women to vacate their family home.
The four women have hailed the High Court decision for reversing the Ngwaketse Customary law, which states that the last born son is the only one qualified as heir to the exclusion of his female siblings.
Dingake warned in his judgement that the customary law is an unacceptable part of the system of male domination that has been rejected in the past by the courts.
The judge further stated that he views the exclusion of women from heirship is consistent with the logic of patriarchy, which reserves for women positions of subservience and subordination.
He maintained that exclusion is not only degrading to women but it also constitutes an offence against human dignity. He further warned that the discrimination against women, denying and limiting their equality with men is fundamentally unjust.
The judge noted that where a court arrives at the conclusion that the culture conflicts with the supreme law of the land it must not hesitate to pronounce.
Dingake indicated in his judgement that it will be tragic to interpret the Constitution in a way as to take away or reduce rights of other human beings solely on the ground of sex.
“I perceive it to be the function of the justices of this court to keep the law alive, in motion and to make it progressive for the purposes of rendering justice to all, without being inhibited by those aspects of culture that are no longer relevant, to find every conceivable way of avoiding narrowness that would spell injustice,” added Dingake.
One of the applicants, Edith Mmusi, stated that their case will also teach more Batswana about their rights that have been taken away. She said that women have been denied inheritance in the past only because of their gender.
Mmusi was happy that she goes back to his father’s place after being tormented by the Ngwaketse Customary law, which was hell bent on forcing her out of her mother and father’s residence.
She said that its time now that girl and boy child be awarded equal treatment.