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Article Botswana: Landmark Case Ends Patriarchal Inheritance System

(Oct. 16, 2012) On October 12, 2012, the High Court of Botswana issued a landmark decision on women’s inheritance rights, for the first time according women the right to inherit a family home despite customary law practices. The court held that a tribal law that gave that right only to the youngest-born sons contravened the country’s Constitution, which guarantees gender equality. Tswana custom has prescribed that the family home is inherited either by the first-born or last-born son, depending on the given tribe. (Botswana Court Grants Women Legacy Rights, PMNEWS [Nigeria] (October 12, 2012).)

In Mmusi and Others v. Ramantele and Another, Edith Mmusi and her three sisters, all over 65 years old, who live in the Mmusi family home, disputed in customary court in 2007 the claim to the home brought by their nephew. He argued that the home had been promised to his father, the women’s older step-brother, who died before the inheritance was distributed, under an agreement with the women’s only brother before that brother’s death, and that the home should pass on to him (the nephew). The Lower Customary Court found in favor of the nephew, the Higher Customary Court held in 2008 that the home belonged to all of the children, and the Customary Court of Appeal, to which both parties appealed, held that the home should be inherited by the nephew. (Mmusi and Others v Ramantele and Another (Apr. 17, 2000), Southern Africa Litigation Centre [click on Mmusi Case Summary.doc].)

In appealing this decision to the High Court of Botswana, the sisters argued that they had a right to inherit the family home by virtue of their having been the ones to contribute to its upkeep and expansion. (Id.) The High Court agreed, based on section 3 of the Constitution of Botswana, and overturned the customary law of the Ngwaketse people that had prevented women from inheriting family homes. (Dan Taglioni, Botswana High Court Strikes Down Male-Dominated Inheritance Law System, PAPER CHASE NEWSBURST (Oct. 12, 2012); Mtokozisi Dube, Landmark Case on Women and Inheritance in Botswana, AFRICA REVIEW (Oct. 11, 2012).) The Constitution states, “every person in Botswana is entitled to the fundamental rights and freedoms of the individual,” regardless of “race, place of origin, political opinions, colour, creed or sex. … ” (Constitution of Botswana (in force on Sept. 30, 1966, as last amended by Statutory Instrument No. 91 of 2006), World Intellectual Property Organization website.)

The Attorney General, who reportedly acknowledged the discriminatory nature of the customary law, had argued that Botswana as a culture was not ready for gender equality or abandonment of its customary inheritance laws. (Dube, supra.) Justice Key Dingake of the High Court expressed the view however, “that in the name of fairness and equality women should have the right to inherit property.” (Botswana Court Grants Women Legacy Rights, supra.) “It seems to me,” the Justice stated, “that the time has now arisen for the justices of this court to assume the role of the judicial midwife and assist in the birth of a new world struggling to be born. Discrimination against gender has no place in our modern day society.” He also called upon the government to remove all discriminatory laws from Botswana’s statute books. (Aislinn Laing, Women Can Inherit the Earth Rules Botswana Judge, THE TELEGRAPH (Oct. 12, 2012).)

Molefi Ramantel, the nephew who lost the case, was unhappy with the decision, declaring that it was counter to the country’s culture. (Botswana Women Allowed to Inherit, BBC NEWS AFRICA (Oct. 12, 2012).)

The Southern African Litigation Centre (SALC) joined the sisters in the suit. (About Us, SALC website (last visited Oct. 15, 2012)); Mmusi and Others v Ramantele and Another [case materials], SALC website (Apr. 17, 2000).) Priti Patel of SALC said that the decision was “a significant step forward for women’s rights not only in Botswana but in the southern Africa region, where many countries are addressing similar discriminatory laws.” (Botswana Women Allowed to Inherit, supra.)

Gender equality has also been affirmed in the country’s Vision 2016, which states that by that year “Botswana will have eradicated negative social attitudes towards the status and role of women [among other specified minorities] and will be free from all forms of sexual harassment.” (Gender Equality, The Botswana Centre for Human Rights (Ditshwanelo) website (last visited Oct. 16, 2012).)

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