n African Human Rights Law Journal - Gender equality in Botswana : the case of : recent developments

Volume 13, Issue 1
  • ISSN : 1609-073X
  • E-ISSN: 1996-2096



On 12 October 2012, the High Court of Botswana declared the rule of customary law, which provides that only the last-born son may inherit his parents' dwelling house, as unconstitutional. The rule excludes women from inheriting their parents' dwelling house regardless of their rank in the birth order. This article examines the decision of the Court. It notes with commendation that, although the decision will not of itself stop the disempowerment of women in Botswana, it constitutes a critical step towards gender mainstreaming in the country. The article also lauds the Court for its extensive use of comparative human rights jurisprudence and international human rights law in the determination of the claim. The advantage of this approach is that it sets the growth of Botswana's human rights jurisprudence in line with international standards and best practices. Nevertheless, this article notes that the judge failed to reconcile the two conflicting constitutional provisions that were at issue in the case: section 3, which affords the applicants equal protection of the law, and section 15, which permits discrimination in inheritance and other matters governed by one's personal law. The article suggests that the judge should have adopted and applied the harmonisation approach to settle this tension. Further, the article notes that the judge misapplied precedents on the question of the role of public opinion in the determination of constitutional disputes before him. Be that as it may, the abolition of the concerned rule of customary law is cause for celebration for women of Botswana, Africa and beyond.

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