Emalus Library Online Documents
Collection - Customary Law
IN A CONFLICT BETWEEN EQUAL RIGHTS FOR WOMEN AND CUSTOMARY LAW, THE BOTSWANA COURT OF APPEAL
Michael P. Seng *
Source: Toledo Law Review ,Spring, 1993 ; 24 U. Tol. L. Rev. 563
* Professor, The John Marshall Law School, Chicago, Illinois.
The author would like to thank Carol Pauli and John Hudelson for their helpful comments
about this article.
... A little noted decision handed down by the Botswana Court of Appeal in July of
1992 may give even greater satisfaction to the women's rights movement worldwide than the
new turn of events in the United States. ... 5. (1) A person born outside Botswana shall
be a citizen of Botswana by descent if, at the time of his birth, ... In his opinion
holding the Citizenship Act unconstitutional, Judge President Amissah of the Court of
Appeal refused to give the Law Commission Report any weight. ... Therefore, if gender
equality is illegal under the Botswana Constitution, resort to arguments about customary
law and about the problems of dual citizenship will not carry the day. ... He further
argued that Section 15, which provides protection against discrimination, defines
discrimination only on the bases of "race, tribe, place of origin, political
opinions, colour or creed." ... In his separate opinion concurring with Judge
President Amissah, Judge Bizos similarly concluded that the Botswana Constitution was
enacted with reference to modern international standards prohibiting gender
discrimination. ... Furthermore, the Judge President rejected the argument that because
under Botswana customary law the father is the guardian of the children, only he can
represent the children's interests. ... The Court of Appeal left the citizens of Botswana
with two basic choices: amend the Citizenship Act of 1984 to comply with the Constitution,
or amend the Constitution to permit gender discrimination. ...
NINETEEN ninety-two was a good year for women's rights. The United States Supreme Court
reaffirmed a woman's right to choose whether to have an abortion, stating that the right
was important to facilitate "the ability of women to participate equally in the
economic and social life of the Nation."
Bill Clinton was elected President of the United States on promises to support "free
choice" in abortions, to lift the "gag-rule" on abortion counseling by
recipients of federal funds, to support legislation
for child care and family leave time from work and to open the military to gays and
lesbians. The new first lady, Hillary Rodham Clinton, gave the country a new model for a
first lady, and the United States Senate increased its membership of women by three
hundred percent, including the first African-American woman. Nineteen ninety-two
signaled that women were finally coming into their own in the United States and that the
backlash against women so ably described by Susan Faludi was ending.
A little noted decision handed down by the Botswana Court of Appeal in July of 1992 may
give even greater satisfaction to the women's rights movement worldwide than the new turn
of events in the United States. In Attorney General v. Unity Dow, the Court of Appeal
declared the Botswana Citizenship Act of 1984
(the Act) unconstitutional on the ground that it discriminated against women. The decision
is of major significance not only for Botswana, but for all of Africa, where women are
struggling for recognition of some of the most basic human rights. The decision holds that
customary laws on the status of women must yield to constitutional provisions protecting
equal rights when there is a conflict. [*564]
In 1984, the Botswana Citizenship Act was enacted to provide that persons could become
citizens of Botswana by birth and descent only if at the time of birth their fathers were
citizens of Botswana or, in the case of persons born out of wedlock, their mothers were
citizens of Botswana. Unity Dow, a citizen of
Botswana and a lawyer, was married to an American, Peter Nathan Dow, who had been residing
in Botswana for fourteen years. Their first child was born out of wedlock in 1979 and
accordingly was a citizen of Botswana. The couple were married in 1984 and had two
additional children, both of whom were born in Botswana and lived there continuously since
their birth. By terms of the Act, these
children born after the marriage were not citizens of Botswana and were indeed aliens in
the land of their birth.
I. The Land
Botswana is located in the heart of southern Africa. It is completely landlocked. To the
south is South Africa, to the west is Namibia, to the north are Angola and Zambia and to
the east is Zimbabwe. The country is roughly the size of Texas, and the terrain is largely
desert and savanna. The population is just above one and a quarter million persons.
Compared to many modern African nations, ethnic and tribal tensions in Botswana are
minimal. The majority tribe is
the Tswana, followed by the Kalanga in the northeast. A number of smaller tribes also
coexist in Botswana. Most notable to Westerners because of the large number of
anthropological studies on them are the San, sometimes known as the Basarwa or Bushmen.
Most of the people who reside in Botswana are cattle herders and farmers.
Probably because of its location and seeming lack of wealth, Botswana was never colonized
by the Europeans to the extent of most other African countries. Because of disputes in the
latter nineteenth century between the Batswana
and the Afrikaners, the British created "Bechuanaland." The northern part of
Bechuanaland, a British protectorate, is now Botswana. Botswana became independent of the
British in 1966.
Botswana remains an exception in post-colonial Africa, where most nations have, for some
period of time, experienced some form of [*565] authoritarian
rule. Regular elections have
been held for the National Assembly and the Presidency. The Botswana Democratic Party
(BDP) has traditionally swept all national elections, but there exists a vigorous if not
powerful opposition. Concern is often voiced about the depth of the commitment to
democracy and whether "democracy" will be crushed if the current majority sees
its power begin to slip. Nonetheless, Batswana appear to be proud of their democratic
tradition and are not likely to lightly forfeit it.
Botswana has a written constitution and
bill of rights. Botswana has an
independent judiciary where judges are appointed by the President and can be removed only
for cause. The lowest court is the
High Court, and appeals can be taken to the Court of Appeal of Botswana in Lobatse. The
Constitution specifically provides for judicial redress for those whose rights are
Botswana's democratic tradition is frequently traced back to the "kgotla"
meeting. Under customary law,
every Motswana belonged to a specific ward of varying size. Most governmental
operations occurred at the ward level. Each ward had a headman, who was appointed by the
chief largely on the basis of heredity. The headman was required to consult with the adult
males in the ward. This consultation occurred at the kgotla meeting. The kgotla was held
in the early morning at a regularly designated outside arena in the ward. Specific matters
of administration and legislation were discussed, and everyone present was allowed to
voice his opinion. Decisions were reached by consensus.
The kgotla also operated as a local court.
Disputes were placed before the kgotla, evidence was heard and discussed and a consensus
reached. Appeals could be taken to the Chief's kgotla. The kgotla system furthered
individual participation and responsibility and militated against dictatorial [*566]
rule. The focus was on harmony and consensus and the good of the community.
At the time of independence in 1966, Botswana was one of Africa's poorest and least
developed areas. The people lived and worked much as they had done for centuries. However,
diamonds were discovered in Botswana the year after independence and today Botswana has
one of the highest per capita income reserves in Africa. Unlike other African nations,
Botswana did not go on a spending binge. The infra-structure and educational resources
have been developed but not at the expense of conspicuous consumption. Nonetheless,
tensions are beginning to show.
Traditional life is being disrupted. Batswana are moving to the cities, and family
breakups, illegitimacy and crime are starting to edge upward. Compared to the rest of the
continent, Botswana's problems appear to be solvable so long as the will remains to do
II. The Status of Women Under Tswana Customary Law
The Batswana had a highly developed customary law that covered the marriage relationship
and the status of women. Traditionally, marriage was a matter of general community concern
and was considered a union of families more than a union between two individuals. In practice, the
offspring of the marriage were often shared between the families. Polygamy was widely
practiced in traditional society, but the practice is dying out today.
Formerly, women were considered to be socially inferior to men and were treated as minors
throughout their lives. Before marriage, a woman was under the guardianship of her father;
after marriage, she was under the guardianship of her husband; after her husband's death,
she was under the guardianship of her son or other male relative. Women had little, if
any, part in governmental activities. In public social activities, they generally formed
separate groupings, and they had their own separate work and domestic responsibilities.
Today, some women leave home and accumulate assets of their own and participate in
commercial transactions without the consent of a guardian. Women also vote and
participate in political activities, although few women hold important positions in either
the public or the private [*567] sectors. Neither the customary
law nor the common or statutory law has
kept pace so as to fully define the rights and responsibilities of women in this new
Traditionally among the Tswana, marriage was not accomplished through a single ceremony.
It started with a mutual agreement (a betrothal) between the two families and was
completed by the transfer of bogadi, generally in the form of cattle, from the bridegroom
to the bride's family. The couple generally
lived together and had children after the betrothal. The transfer of bogadi may not have
occurred for some time thereafter.
The Tswana distinguished between physiological paternity and legal paternity. Legal paternity did not
occur until the transfer of bogadi. Until bogadi was transferred, a woman's reproductive
power belonged to her own family, and children were considered part of her father's house.
Upon the payment of bogadi, the husband was fully entitled to the children he had begotten
so that they became part of his house. Because the husband owned the reproductive rights
of his wife, he could also claim any children begat through her adulterous activities. Today, customary law
has evolved so that children born to a married woman are members of her husband's descent
group regardless of whether bogadi has been transferred.
Traditionally, unmarried girls who became pregnant were scorned, and their children either
were killed at birth or suffered from severe social stigma. Today, this is not the
case. The child is considered
part of the mother's family. The father takes the child if he marries the mother or adopts
the child. If the father does not exercise either of these options, a man who subsequently
marries the woman may claim the child, although the child may enjoy a status inferior to
the husband's own children.
Under customary law, women were clearly not equal to men. In this, Tswana society differed
little from most traditional societies, including traditional Western societies. Today in
Botswana, couples who marry may choose to be bound either by customary law or by common or
statutory law. However, the common or statutory law is little better than customary law
when it comes to women's rights. Under the Roman-Dutch common law applied in Botswana, the
husband is designated head of the family, [*568] chooses the
matrimonial domicile, has guardianship of the children and exercises control over the
couple's joint property unless specifically excluded from doing so by contract before the
marriage. Modern statutes have
done little to correct this situation.
III. The Unity Dow Case
Unity Dow filed her action in the High Court to declare Section 4 of the Citizenship Act
in violation of the fundamental rights and freedoms protected by Chapter II of the
Botswana Constitution. The High Court ruled in her favor, finding that the Act
discriminated against women. The High Court judge
I therefore find that Section 4 [of the Citizenship Act] is discriminatory in its effect
on women in that, as a matter of policy,
(i)ii It may compel them to live and bear children, outside wedlock.
(ii)i Since her children are only entitled to remain in Botswana if they are in possession
of a residence permit and since they are not granted permits in their own right, their
right to remain in Botswana is dependent upon their forming part of their father's
(iii) The residence permits are granted for no more than two years at a time, and if the
applicant's husband's permit were not renewed both he and applicant's minor children would
be obligated to leave Botswana.
(iv)i In addition applicant is jointly responsible with her husband for the education of
their children. Citizens of Botswana qualify for financial assistance in the form of
bursaries to meet the costs of university education. This is a benefit which is not
available to a non-citizen. In the result the applicant is financially prejudiced by the
fact that her children are not Botswana citizens.
(v)ii Since the children would be obliged to travel on their father's passport the
applicant will not be entitled to return to Botswana with her children in the absence of
What I have set out at length may inhibit women in Botswana from marrying the man whom
they love. It is no answer to say that there are laws against marrying close blood
relations-that is a reasonable exclusion....
It seems to me that the effect of section 4 is to punish a citizen female for marrying a
non-citizen male. For this she is put in the unfavourable position in which she finds
herself viz-a-viz her children and her country.
The fact that according to the Citizenship Act a child born to a marriage between a
citizen female and a non-citizen male follows the citizenship of its father may not in
fact have that result. [*569]
It depends on the law of the foreign country. The result may be that the child may be
rendered stateless unless its parents emigrate. If they are forced to emigrate then the
unfortunate consequences which I have set out earlier in this judgment may ensure.
The Attorney General appealed to the Court of Appeal on the grounds that the High Court
erred in holding that the Act was unconstitutional and that, in any event, the complainant
lacked standing to make the argument.
A. The Botswana Citizenship Act of 1984
The modern nation-state, with its attendant concepts of citizenship, did not exist in
traditional Tswana society. The basic unit in society was the family. Family ties were
close. Family members helped each other in times of trouble, and family relationships were
governed by well-defined principles.
Tribal membership was quite fluid. While
tribal membership was primarily determined by descent through the father, persons could
become members of a tribe through conquest or by pledging allegiance to the Chief. Tribal
membership was thus not permanently fixed by birth.
In traditional Tswana society, even apart from issues of gender, not all persons were
equal. Nobles were those
related to the Chief. Commoners were non-royal members of the nuclear group who
participated fully in the life of the tribe. Immigrants or foreigners were aliens who had
not become fully assimilated. They could participate in community activities, although as
a practical matter their word might not count for as much as that of a noble or commoner.
Some Tswana had serfs. The serfs were often members of minority tribes like the Bushman,
and they had few civil rights. Upward mobility between the classes appears to have been
fluid. Today, most class distinctions and inequalities have, at least in theory, ceased to
The British created the Bechuanaland Protectorate in 1885. Presumably, persons who were in
the area of the Protectorate acquired citizenship under British law, but the real concern
about who was a citizen of Botswana did not arise until the creation of Botswana as an
independent nation-state in 1966.
Chapter III of the 1966 Constitution defined citizenship. Section 21 declared, with
certain exceptions, that a person born in Botswana after [*570] September 30,
1966 would become a citizen of Botswana.
Section 22 distinguished children born outside of Botswana. They became citizens only if
their fathers were citizens of Botswana.
The present Citizenship Act came into effect in 1984 and repealed Chapter III of the
Constitution. It provided in pertinent part:
4. (1) A person born in Botswana shall be a citizen of Botswana by birth and descent if,
at the time of his birth,
4. (a) his father was a citizen of Botswana; or
4. (b) in the case of a person born out of wedlock, his mother was a citizen of Botswana.
4. (2) A person born before the commencement of this Act shall not be a citizen by virtue
of this section unless he was a citizen at the time of such commencement.
5. (1) A person born outside Botswana shall be a citizen of Botswana by descent if, at the
time of his birth,
5. (a) his father was a citizen of Botswana; or
5. (b) in the case of a person born out of wedlock, his mother was a citizen of Botswana.
5. (2) A person born before the commencement of this Act shall not be a citizen by virtue
of this section unless he was a citizen at the time of such commencement.
The purpose of the 1984 Act was to bring citizenship into accord with customary law. After
the Act came into force, members of the Law Reform Committee went about the country
getting the reaction of the people to it. The
evidence indicated that the majority of Batswana supported the Act and that only a small
group of urban women married to foreigners opposed it.
In his opinion holding the Citizenship Act unconstitutional, Judge President Amissah of
the Court of Appeal refused to give the Law Commission Report any weight. The Report was
assembled after the Act was passed. Furthermore, what the Court was trying to do, he
noted, was unravel the meaning of the Constitution and not the meaning of the Citizenship
Act. The Judge President suggested that had the Law Commission canvassed the people of
Botswana prior to the adoption of the Constitution to determine whether they felt the
overriding characteristics of their society should not be altered by any individual rights
or freedoms conferred by the Constitution, the report might have been of assistance in
construing ambiguities in the Constitution.
However, no ambiguities [*571] existed in the
Citizenship Act requiring resort to a report compiled after the fact.
In argument before the Court of Appeal, the Attorney General agreed that the Citizenship
Act discriminated against women, but he argued that the Act was intentionally
discriminatory to preserve the traditional male orientation of Tswana society. In his dissenting
statement, Justice Schreiner commented that when Botswana adopted its Constitution it was
assumed that "the social mores of the various groups of inhabitants were presumably
intended to continue unaffected by independence save to the extent that changes were
specifically provided for in the Constitution."
However, the Judge President did not see any reason why citizenship in Botswana must
necessarily follow the customary or traditional systems of the people. He looked at the
situation in Botswana before independence, when under the British law all persons born
under the protection of the sovereign became citizens by birth. It was not claimed, he
noted, that this situation interfered with the male orientation of Botswana customary
society during that period.
The Judge President also quoted the distinction made by Oppenheim between
"nationality" in the sense of citizenship in a state and "nationality"
in the sense of belonging to a particular racial or ethnic grouping. The state could define
the former without resort to customary ideas about the latter.
The Judge President held that in the final analysis custom must yield to the preeminence
of the Constitution: "A constitutional guarantee cannot be overridden by custom. Of
course, the custom will as far as possible be read so as to conform with the Constitution.
But where this is impossible, it is custom not the Constitution which must go."
In a concurring opinion, Judge Bizos acknowledged that "the customs, traditions and
culture of a society must be borne in mind and afforded due respect," but they cannot
prevail when they conflict with the express provisions of the Constitution. "In
relation to the protection of personal and political rights the primary instrument to
determine the heartbeat of Botswana is its Constitution."
The Attorney General further tried to justify the law on the ground that it eliminated
problems of dual citizenship; however, the Judge President held that eliminating dual
citizenship does not necessarily require legislation which discriminates between the sexes
of the parents. Therefore, if gender
equality is illegal under the Botswana Constitution, resort to arguments [*572]
about customary law and about the problems of dual citizenship will not carry the
B. Section 3 of the Botswana Constitution
The provisions in the Constitution that Unity Dow claimed gave her rights contravened by
the Citizenship Act were Sections 3 and 14.
Section 3 of the Botswana Constitution provides:
Whereas every person in Botswana is entitled to the fundamental rights and freedoms of the
individual, that is to say, the right, whatever his race, place of origin, political
opinions, colour, creed or sex, but subject to respect for the rights and freedoms of
others and for the public interest to each and all the following, namely-
(a) life, liberty, security of the person and the protection of the law;
(b) freedom of conscience, of expression and of assembly and association; and
(c) protection for the privacy of his home and other property and from deprivation of
property without compensation,
the provisions of this Chapter shall have effect for the purpose of affording protection
to those rights and freedoms subject to such limitations of that protection as are
contained in those provisions, being limitations designed to ensure that the enjoyment of
the said rights and freedoms by any individual does not prejudice the rights and freedoms
of others or the public interest.
Section 14 deals with protection of the freedom of movement, defined as "the right to
move freely throughout Botswana, the right to reside in any part of Botswana, the right to
enter Botswana and immunity from expulsion from Botswana."
The Attorney General argued that Section 3 is simply a preamble to Chapter II, which
defines the fundamental rights and freedoms of the individual and that Section 3 did not
alone confer any rights. He further argued that Section 15, which provides protection
against discrimination, defines discrimination only on the bases of "race, tribe,
place of origin, political opinions, colour or creed."
Judge President Amissah began his opinion with a discussion about the nature of a
constitution and constitutional interpretation:
The object [the constitution] is designed to achieve evolves with the evolving development
and aspirations of its people. In terms of the Interpretation Act,[ ] the remedial
objective is to chart a future for the people, a liberal [*573] interpretation of
that objective brings into focus considerations which cannot apply to ordinary legislation
designed to fit a specific situation.
The Judge President examined precedents from Botswana and foreign jurisdictions on
constitutional interpretation and concluded:
The lessons they teach are that the very nature of a constitution requires that a broad
and generous approach be adopted in the interpretation of its provisions; that all the
relevant provisions bearing on the subject for interpretation be considered together as a
whole in order to effect that objective of the constitution; and that where rights and
freedoms are conferred on persons by the constitution, derogations from such rights and
freedoms should be narrowly or strictly construed.
By opening the pandora's box of constitutional interpretation, the Judge President started
a debate that should be familiar to those concerned with current constitutional theory in
the United States. In his dissenting opinion, Judge Schreiner cautioned that general dicta
indicating that the courts should interpret provisions protecting human rights liberally
does not justify a departure from the "plain" meaning of the words used in the
Judge Puckrin, another dissenter, suggested that there were three schools of
constitutional interpretation: the "Framer's Intent" school, the "Living
Tree" metaphor and purposive interpretation.
He rejected the "Framer's Intent" school on the ground that a constitution must
be interpreted in light of contemporary experience, not by what was said in the past. He rejected the
"Living Tree" metaphor, which holds that a constitution is capable of growth and
expansion through constitutional interpretation, because growth must be derived from the
democratic process and not from judicial conviction.
Purposive interpretation involves the interpretation of rights "in accordance with
the general purpose of having rights, namely the protection of individuals and minorities
against an overbearing majority." Judge
Puckrin suggested that the latter approach combined with a contextual approach is the
preferred method to determine the ambit and extent of any freedom or right under debate.
Judge President Amissah rejected the argument that Section 3 was nothing more than a
preamble. He based his conclusion
on the wording and structure of Section 3: "[Section 3] is the key or umbrella
provision [*574] in Chapter II
under which all rights and freedoms protected under the Chapter must be subsumed."
The Judge President rejected the argument that only Section 15 prohibits discrimination.
Rather Sections 4 to 19 expand or limit Section 3, but "Section 3 itself encapsulates
the sum total of the individual's rights and freedoms under the Constitution in general
terms." Thus, Section 3
requires equal treatment for all, including women, except where limited by other sections
in Chapter II.
The Judge President then considered whether the silence in Section 15 on sex
discrimination should be construed as allowing discrimination on the ground of sex. The
Attorney General argued that the word "sex" was intentionally omitted from
Section 15(3) "to accommodate the patrilineal structure of Botswana society, in terms
of the common law, the customary law, and statute law."
The Judge President noted that the definition in Section 15(3) is expressly stated to be
applicable to that section alone and, therefore, can have no application to the equal
protection principles articulated in Section 3.
He noted that the provisions in Chapter II stating an exception or limitation to a right
or freedom do so expressly, in clear language.
There is no language in Chapter II that excepts discrimination on the basis of sex from
the rights conferred in Section 3. The
Judge President concluded that the framers of the Constitution did not intend to declare
that all vulnerable groups or classes were identified and mentioned for all time in the
Section 15(3) definition. Rather, the groups are mentioned by way of example. He suggested that
discrimination against the disabled, discrimination based on language or geographical
division or discrimination on the basis of religion or community may be prohibited,
although these classifications are not mentioned in Section 15(3).
To exclude gender discrimination from constitutional proscription would allow the
legislature to exclude women from voting or holding political office. The Judge President
remarked that a decision by the Court of Appeal upholding gender discrimination under the
Botswana Constitution would be as outrageous today as the decision of the United States
Supreme Court upholding racial discrimination under the U.S. Constitution in Dred Scott v.
Sanford was in 1857. [*575]
The Attorney General's argument that a law relating to citizenship was a "personal
law" and therefore fell under Section 15(4) of the Constitution which excluded laws
"with respect to adoption, marriage, divorce, burial, devolution of property on death
or other matters of personal law" from the anti-discrimination provisions was
likewise rejected. The Judge President
first commented that Section 15 did not deal with sex but only with discrimination on the
basis of "race, tribe, place of origin, political opinions, colour or creed." Second, the Judge
narrowly defined personal law as "the system of law that applies to a person and his
transactions determined by his tribe, religious group, case, or other personal factors, as
distinct from the territorial law of the country to which he belongs, in which he finds
himself, or in which the transaction takes place."
The fact that former Chapter III of the Constitution had provisions that defined a child's
citizenship based on the citizenship of the father
was also deemed to be irrelevant. The
Citizenship Act, merely a statute, must be consistent with the Constitution which can
always place limitations on its exemptions. Therefore, the limited exemption in the
Constitution did not grant a general license to discriminate on the basis of gender. Based
on these reasons, the Court of Appeal held that Section 3 outlawed gender discrimination,
at least when the treatment of the different sexes cannot be based on biological
C. International Law
The Court of Appeal found support for its opinion that the Botswana Constitution
prohibited gender discrimination in international law. By looking to the standards of
international law, the Court showed a catholicity that has not always characterized the
decisions of the U.S. Supreme Court.
Judge President Amissah referred to Section 24 of the Botswana Interpretation Act, which allows the courts
to construe an enactment by reference to any relevant international treaty, agreement or
convention. He also referred to
Article 2 of the Universal Declaration of Human [*576] Rights, which provides that all
persons enjoy the right to be free from distinctions based on sex, and concluded:
The British Government must have subscribed to this Declaration on behalf of itself and
all dependent territories, including Bechuanaland, long before Botswana became a State.
And it must have formed part of the backdrop of aspirations and desires against which the
framers of the Constitution of Botswana formulated its provisions.
Botswana is a signatory of the African Charter on Human and People's Rights, which prohibits sex
discrimination. The Attorney General argued that although Botswana had ratified the
African Charter, it had not incorporated it into domestic law. The Judge President
acknowledged that the African Charter was not binding inside Botswana as legislation, but
stated that it could clearly be referred to as a source for interpreting difficult
provisions of the Botswana Constitution. He
I am in agreement that Botswana is a member of the community of civilised States which has
undertaken to abide by certain standards of conduct, and, unless it is impossible to do
otherwise, it would be wrong for its Courts to interpret its legislation in a manner which
conflicts with the international obligations Botswana has undertaken. This principle, used
as an aid to construction as is quite permissible under Section 24 of the Interpretation
Act, adds reinforcement to the view that the intention of the framers of the Constitution
could not have been to permit discrimination purely on the basis of sex. [*577]
In his separate opinion concurring with Judge President Amissah, Judge Bizos similarly
concluded that the Botswana Constitution was enacted with reference to modern
international standards prohibiting gender discrimination. However, Judge
Schreiner disagreed. He stated that Section 15(9) preserves laws that were in force before
the Constitution was enacted and continue to be in force after its enactment from the
anti-discrimination provisions of Section 15. He also relied on former Chapter III of the
Botswana Constitution, which provided that under certain circumstances children took the
citizenship of their father and not their mother. He argued that these provisions
evidenced that the drafters of the Botswana Constitution had no intention to outlaw
discrimination on the ground of sex so as to comply with international standards, and he
concluded that change, if it is to come, will have to come through legislative action.
However, by looking to international standards, the majority of the judges on the Court of
Appeal gave the decision in Unity Dow a firm grounding. The decision provides a useful
precedent for Botswana and for the other African nations that have ratified the African
Charter on Human and People's Rights.
The final argument raised by the Attorney General was that the complainant had no standing
to bring this action. He argued that she was not sufficiently affected by any action that
might be taken against her children, that as a practicing lawyer she freely chose to marry
into the existing citizenship regime and that there was no immediate threat that her
husband would be expelled from Botswana thereby disrupting the lives of her children.
The Judge President countered that a person should not be prejudiced in his or her rights
because that person is a lawyer. In
response to the Attorney General's argument that the doctrine of popularis actio of Roman
law, which gives individuals the right to assert matters of public interest, is not a part
of Roman-Dutch common law, the Judge President cited the holding of a South African
Appellate Court that once an individual's personal rights are affected, the individual can
also "protect the rights of the public."
The Judge President also relied on Section 18(1) of the Botswana Constitution, which
allows any person who alleges a violation of the Constitution to apply to a court for
redress. He stated that this provision gives broad standing rights and should not be
whittled down by principles [*578] derived from the
common law, whether Roman-Dutch, English or Botswana.
The Judge President further rejected the argument that the Citizenship Act affected only
the children, not their mother. By placing restrictions on the children, the mother's
freedom was also circumscribed.
Furthermore, the Judge President rejected the argument that because under Botswana
customary law the father is the guardian of the children, only he can represent the
children's interests. He held that a parent has responsibilities to a child distinct from
those of a guardian that give the parent standing to sue on behalf of the child.
Neither of the dissenting judges disputed the Judge President's finding that the
complainant had standing to bring the action. The decision therefore stands as a powerful
precedent to uphold broad standing for persons who seek to challenge unconstitutional
governmental actions in Botswana in the future.
IV. Implications of the Decision
The Court of Appeal left the citizens of Botswana with two basic choices: amend the
Citizenship Act of 1984 to comply with the Constitution, [*579] or amend the
Constitution to permit gender discrimination. The latter approach, while it might be
politically popular among traditionalists,
would clearly retard future progress toward the implementation of the human rights
standards now contained in Chapter II of the Botswana Constitution and in the African
Charter on Human and People's Rights and other international documents. The liberal
interpretation given to Section 3 of the Botswana Constitution by the Court of Appeal, if
allowed to stand, opens the door for the further recognition of human rights in Botswana.
Judge Aguda, in his concurring opinion, specifically disclaimed any inference that the
Court was deciding any issue other than the validity of the Citizenship Act. The Attorney General
had argued that if the Citizenship Act was declared unconstitutional, the courts would
also have to declare unconstitutional the Administration of Estates Act, which allows women to
administer an estate only with her husband's consent,
the Deeds Registry Act, which prevents
immovable property from being registered in the name of a woman married in community of
property, the Companies Act, which allows a woman
to become a director of a company only if her husband gives his consent, and a host of
other laws. [*580]
Judge Aguda denied that the unconstitutionality of these laws was a foregone conclusion.
He gave some examples in which difference of sex may justify difference of treatment. For
instance, the penal code provisions prohibit the execution of a pregnant woman, and the
Employment Act provisions allow a pregnant woman maternity leave from her employment. Nonetheless, these
examples are restricted to situations resulting from actual, and not just perceived,
biological differences between men and women. The statutes cited by the Attorney General
are not of this kind, and they will obviously be very difficult for the courts to sustain
in light of the Unity Dow holding.
Women throughout southern Africa have been advocating an end to unequal treatment. The
Women and Law in Southern Africa Research Project has been doing comparative research in
Botswana, Lesotho, Mozambique, Swaziland, Zambia and Zimbabwe. The project has already
generated two books and a number of
reports, particularly on maintenance law.
At about the same time the Unity Dow decision was handed down, the Swaziland research team
of the Women and Law Project issued a report on maintenance in that country. The Swazi report
showed that maintenance problems were widespread in that country; thirty-eight percent of
the women surveyed had a maintenance problem, but only thirty-six percent of these women
had done anything about it. Women were reluctant to use the legal system to force
maintenance for a number of reasons, including fear and a general sense of powerlessness.
When women did go to court, they generally received inadequate awards and had difficulty
enforcing them. The Unity Dow decision
may not directly have a solution for all of these problems; but, to the extent that the
Botswana Court of Appeal recognized equal rights for women, the decision may prompt an
increased awareness of the problems faced by women, thereby inspiring a search for
solutions to those problems not only in Botswana but throughout Africa.
One could argue that the Court of Appeal was overly influenced by evolving international
standards on sexual equality and that it should have been more sensitive to Tswana
customary law. Thus, the Court should have left the Botswana legislature free to evolve
its own solution on how to accommodate human rights norms to traditional standards. [*581]
Nonetheless, the goal of international human rights norms is to establish a bottom
line below which societies cannot go regardless of their own cultural values.
Botswana adopted its own bottom line when it enacted its Constitution in 1966. As
interpreted by Judge President Amissah, Section 3 of the Botswana Constitution establishes
the international norm that prohibits discrimination based on sex as the law of Botswana.
Section 18 insures that the courts will be open to those who suffer injury because of a
violation of the provisions of the Constitution. The international norm has thus not been
thrust upon the people of Botswana, the people themselves agreed when they adopted the
Constitution to be governed by the international norm.
The victory won by Unity Dow is not for women only. It will also benefit males. This is
illustrated by the Nigerian case, Shugaba Abduvahaman Darman v. Minister of International
Affairs. Darman, who was the
leader in the Borno State House of Assembly, was kidnapped from his home by his political
rivals, transported across the Chad border and refused entrance back into Nigeria, even
though he possessed a Nigerian passport. The government argued that he was not a Nigerian
citizen because his father had been born in Chad. However, Darman was able to establish
that his mother was born in Nigeria. On that basis, the courts declared him a citizen of
Nigeria and ruled that his deportation was illegal. They ordered that his passport be
returned and that Darman be awarded damages. Had Unity Dow not prevailed, a person of
Darman's status in Botswana could be deported from Botswana and denied his passport.
By holding the Citizenship Act of 1984 unconstitutional, the Court of Appeal of Botswana
made a powerful statement supporting sexual equality and the norms established by the
international community. It gave constitutional protection not only to women, but to all
persons in Botswana. [*582] In doing so, it
provided a persuasive precedent for the protection of human rights for many other African
nations as well.
Parenthood v. Casey, 112 S. Ct. 2791, 2809 (1992).
"gag-rule" was upheld by the United States Supreme Court in Rust
v. Sullivan, 111 S. Ct. 1759 (1991).
n3. After the 1992
elections, there were six women in the Senate whereas there had previously been two. The
number of women in the House of Representatives was increased from 29 to 48.
n4. Susan Faludi,
n5. Civ. App. No. 4/91
(Bots. App. Ct. June 3, 1992).
n6. Cap. 01:01/1987
Rev. Amending the Citizenship Act of 1982 (Act 25 1982). Relevant portions of the
Citizenship Act of 1984 are reprinted on pages 2-3 of the Unity Dow opinion.
n7. Id. 4.
n9. This does not mean
that ethnic and tribal tensions are absent. For instance, the Kalanga want the right to
instruct their children in school in their own language. Today, the official language is
English, and the language of use is Setswana. The San, who are traditionally nomadic
hunters and gatherers and who are being pushed off the game reserves and other public
lands, are seeking recognition of their traditional rights and culture.
n10. The country is
Botswana. The majority tribe is the Tswana, which has a number of different sub-tribes.
Persons residing in Botswana are singularly referred to as Motswana and in the plural as
Batswana. The language is Setswana.
n11. See John Holm,
Botswana: A Paternalistic Democracy, in 4 Democracy in Developing Countries: Africa 179
(Larry Diamond et al. eds., 1988).
n12. Botswana Const.
n13. Id. ch. II.
n14. The President
appoints the Chief Justice of the High Court, id. ch. VI, 96(1), and the President of the
Court of Appeal. Id. ch. VI, 100(1). Judges are appointed to the High Court on the advice
of the Judicial Service Commission, id. ch. VI, 96(2), as are the Justices of the Court of
Appeal. Id. ch. VI, 100(2). The Constitution provides for the independence of the Judicial
Service Commission. Id. ch. VI, 103.
Judges on the High Court and Court of Appeal must retire, unless an exception is made, at
the age of 65, or they can be removed either for nonperformance of their duties or for
misbehavior. Id. ch. VI, 97, 101.
n15. The Constitution
provides that if any person alleges that any of the provisions of the Bill of Rights
"has been, is being or is likely to be contravened in relation to him, then, without
prejudice to any other action with respect to the same matter which is lawfully available,
that person may apply to the High Court for redress." Id. ch. II, 18.
n16. See L.D.
Ngcongco, Botswana's Historical Experience with Democracy, in Democracy in Botswana 42-47
(Holm & Molutsi eds., 1989).
n17. See I. Schapera
& John L. Comoroff, The Tswana 39-41 (rev. ed. 1991).
n18. See id. at 49-51.
n19. See Joseph
Contreras, An African Success Story, Newsweek, Oct. 28, 1991, at 20.
n20. B.C. Thema, The
Changing Pattern of Tswana Social and Family Relations, in 4 Botswana Notes & Records
39, 40 (1972).
n21. Id. at 41.
n22. I. Schapera,
Married Life in an African Tribe 336 (1941).
n24. See Simon
Roberts, Tswana Family Law, in 5 Restatement of African Law (Botswana I) 20 (1972).
n25. Motsei Madisa,
Women and Politics, in Multi-Party Democracy in Botswana 55-59 (Mpho G. Molomo & Brian
T. Mokopakgosi eds., 1991).
law" in Botswana is generally the Roman-Dutch law borrowed from South Africa.
Molokomme, Women's Law in Botswana: Laws and Research Needs, in The Legal Situation of
Women in Southern Africa 13 (Julie Steward & Alice Armstrong eds., 1990); Roberts,
supra note 24, at 18 ff.
n28. The marriage
ceremony is described in I. Schapera, A Handbook of Tswana Law and Custom 125 (1970).
n29. Id. at 169.
n30. Id. at 170-71.
n31. Roberts, supra
note 24, at 22.
n32. Schapera, supra
note 28, at 171-73.
n33. Roberts, supra
note 24, at 22.
Molokomme, Marriage-What Every Woman Wants or "Civil Death"?, in Woman and Law
in Southern Africa 182-85 (Alice Armstrong & Welshman Ncude eds., 1987). See also John
Kiggundu, The Law of Domicile in Botswana: The Need for Reform, 2 Afr. J. Int'l &
Comp. Law 626 (1990).
n35. Molokomme, supra
note 34, at 185.
n36. The High Court
decision is analyzed in E.K. Quansah, Unity Dow v. Attorney General of Botswana-One More
Relic of a Woman's Servitude Removed, 4 Afr. J. Int'l & Comp. Law 195 (1992).
n37. Attorney General
v. Unity Dow, Civ. App. No. 4/91, at 5 (Bots. App. Ct. June 3, 1992) (opinion of Amissah,
n38. See Schapera
& Comoroff, supra note 17, at 38-39.
n39. See id. at 28-29;
Schapera, supra note 28, at 118-21.
n40. Schapera, supra
note 28, at 30-31. See also K. Datta & A. Murray, The Rights of Minorities and Subject
Peoples in Botswana: A Historical Evaluation, in Democracy in Botswana 58-68 (John Holm
& Patrick Molutsi eds., 1989).
n41. Unity Dow, Civ.
App. No. 4/91, at 26 (opinion of Amissah, J. P.).
n42. Botswana Const.
ch. III, 21. See Quansah, supra note 36, at 197.
n43. Unity Dow, Civ.
App. No. 4/91, at 47 (opinion of Amissah, J.P.).
n44. Citizenship Act
of 1984, Cap. 01:01/1987 Rev., 4-5.
n45. Report of the Law
Reform Committee on (i) Marriage Act (ii) Law of Inheritance (iii) Electoral Law and (iv)
Citizenship Law (1989).
n46. Quansah, supra
note 36, at 201-02.
n47. Attorney General
v. Unity Dow, Civ. App. No. 4/91, at 24-26 (Bots. App. Ct. June 3, 1992) (opinion of
n48. Id. at 25-26.
n49. Id. at 21.
n50. Id. at 108
(opinion of Schreiner, J.).
n51. Id. at 26
(opinion of Amissah, J.P.).
n52. Id. at 27-28.
n53. Id. at 28
(quoting 1 L. Oppenheim, International Law 645 (8th ed. 1955).
n54. Id. at 24. See
also Ephrahim v. Pastory, Civ. App. No. 70 (Tanz. High Ct. 1989).
n55. Unity Dow, Civ.
App. No. 4/91, at 105 (opinion of Bizos, J.).
n56. Id. at 30
(opinion of Amissah, J.P.).
n57. Botswana Const.
ch. II, 3.
n58. Id. ch. II,
n59. Id. ch. II,
Interpretation Act of 1984, Cap. 01.01, 26 provides: "Every enactment shall be deemed
remedial and for the public good and shall receive such fair and liberal construction as
will best attain its object according to its true intent and spirit."
n61. Attorney General
v. Unity Dow, Civ. App. No. 4/91, at 10 (Bots. App. Ct. June 3, 1992) (opinion of Amissah,
n62. Id. at 12-13.
n63. Id. at 111
(opinion of Schreiner, J.).
n64. Id. at 135-40
(opinion of Puckrin, J.).
n65. Id. at 136.
n66. Id. at 138.
n67. Id. at 139-40.
n68. Id. at 14
(opinion of Amissah, J.P.).
n69. Id. at 15.
n70. Id. at 17.
n71. Attorney General
v. Unity Dow, Civ. App. No. 4/91, at 32 (Bots. App. Ct. June 3, 1992) (opinion of Amissah,
n72. Id. at 33.
n73. Id. at 34.
n74. Id. at 36.
n75. Id. at 40.
n76. Id. at 41.
U.S. (19 How.) 393 (1857).
n79. Unity Dow, Civ.
App. No. 4/91, at 44 (opinion of Amissah, J.P.).
n80. Id. at 45.
n81. Attorney General
v. Unity Dow, Civ. App. No. 4/91, at 45 (Bots. App. Ct. June 3, 1992) (opinion of Amissah,
n82. Id. at 46.
n83. See supra text
accompanying note 43.
n84. Unity Dow, Civ.
App. No. 4/91, at 47-48 (opinion of Amissah, J.P.).
n85. Id. at 43.
n86. See United
States v. Alvarez-Machain, 112 S. Ct. 2188 (1992) (upholding the jurisdiction of
United States courts to try a Mexican national who was kidnapped and brought to the United
States by United States agents); Stanford
v. Kentucky, 492 U.S. 361, 369 n.1 (1989) (upholding the imposition of capital
punishment for crimes committed by juveniles, despite contrary international standards).
See also Louis Henkin, A Descent Respect to the Opinions of Mankind, 25 J. Marshall L.
Rev. 215 (1992).
Act of 1984, Cap. 01.01, 2.
n88. Unity Dow, Civ.
App. No. 4/91, at 49 (opinion of Amissah, J.P.).
Declaration of Human Rights, G.A. Res. 217 (III), U.N. Doc. A/810 (1948). Article 2 reads:
"Everyone is entitled to all the rights and freedoms set forth in this Declaration,
without distinction of any kind, such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status."
n90. Unity Dow, Civ.
App. No. 4/91, at 52 (opinion of Amissah, J.P.).
n91. The African
Charter was adopted on June 17, 1981 by the Eighteenth Assembly of the Heads of State and
Government of the Organization of African Unity. Article 2 of the Charter provides:
"Every individual shall be entitled to the enjoyment of the rights and freedoms
recognized and guaranteed in the present Charter without distinction of any kind such as
race, ethnic group, colour, sex, language, religion, political or any other opinion,
national and social origin, fortune, birth or other status." African Charter on Human
and Peoples' Rights art. 2, reprinted in Basic Documents on Human Rights 551, 553 (Ian
Brownlie ed., 1992). Paragraphs 1 and 2 of Article 12 state:
1. Every individual shall have the right to freedom of movement and residence within the
borders of a State provided he abides by the law.
2. Every individual shall have the right to leave any country including his own, and
return to his country. This right may only be subject to restriction, provided for by law
for the protection of national security, law and order, public health and morality.
Id. art. 12, 1-2, supra, at 554.
n92. Attorney General
v. Unity Dow, Civ. App. No. 4/91 (Bots. App. Ct. June 3, 1992) (opinion of Amissah, J.P.).
n93. Id. at 53.
n94. Id. at 54.
n95. Id. at 100-01
(opinion of Bizos, J.).
n96. Id. at 128
(opinion of Schreiner, J.).
n97. Id. at 54-55
(opinion of Amissah, J.P.).
n98. Id. at 55.
n99. Id. at 56 (citing
Wood v. Odanquva Tribal Auth. [1975(2)] A.D. 294, at 310).
n100. Id. at 57.
n101. Id. at 59.
n102. Attorney General
v. Unity Dow, Civ. App. No. 4/91, at 59-60 (Bots. App. Ct. June 3, 1992) (opinion of
n103. Judge Aguda, in
his separate concurring opinion, relied on 42 and 44 of the Constitutions of the Federal
Republic of Nigeria, 1979 and 1989 respectively. Unity Dow, Civ. App. No. 4/91, at 92-93
(opinion of Agula, J.). These sections of the Nigerian Constitution, like 18(1) of the
Botswana Constitution, allow any injured person to bring an action for redress of his or
her constitutional rights. In Adesanya v. President of the Republic, 2 Nig. Con. L. Rep.
358 (Nig. Sup. Ct. 1981), Chief Justice Fatayi-Williams construed 41 to hold that a
senator lacked standing as an injured person to challenge the appointment and subsequent
confirmation of the Chairman of the Federal Election Commission. Despite this holding, the
Chief Justice made the following observation:
I take significant cognisance of the fact that Nigeria is a developing country with a
multi-ethnic society and a written Federal Constitution, where rumour-mongering is the
pastime of the market places and the construction sites. To deny any member of such a
society who is aware or believes, or is led to believe, that there has been an infraction
of any of the provisions of our Constitution, or that any law passed by any of our
Legislative Houses, whether Federal or State, is unconstitutional, access to a Court of
Law to air his grievance on the flimsy excuse of lack of sufficient interest is to provide
a ready recipe for organized disenchantment with the judicial process.
In the Nigerian context, it is better to allow a party to go to court and to be heard than
to refuse him access to our courts. Non-access, to my mind, will stimulate the
free-for-all in the media as to which law is constitutional and which law is not! In any
case, our courts have inherent powers to deal with vexatious litigants or frivolous
claims. To re-echo the words of Learned Hand, if we are to keep our democracy, there must
be one commandment-thou shall not ration justice.
Id. at 373.
n104. A newspaper
article reported that few Botswana citizens favored amending the Citizenship Act to give
equal rights to women and that many knowledgeable observers believed the Unity Dow
decision would never be enforced. Nonetheless, the article reported that a women's rights
group was preparing a campaign to force the legislature to amend the Citizenship Act and
to reform the many other laws that discriminate against women. Bobbie Jo Kelso, A Woman's
Place Is At the Center of the Storm, Daily Mail, Aug. 14-20, 1992, at 12.
Of course, a third option also exists; that is for the legislature to do nothing, thereby
leaving the decision unimplemented. If that were to happen, the decision might still have
an important educative function and would inform Batswana that when they discriminate on
the basis of gender they are going against the spirit and letter of their constitution. It
would be hoped that eventually political leaders and the populace would accept the
principle that discrimination against women is not only technically illegal but is wrong.
n105. Unity Dow, Civ.
App. No. 4/91, at 88 (opinion of Aguda, J.).
n106. Cap. 31.01,
n107. The United
States Supreme Court declared unconstitutional an Idaho law requiring that males be
preferred to females in the choice of persons to administer intestate estates. Reed
v. Reed, 404 U.S. 71 (1971).
n108. Cap. 33.02,
n109. The United
States Supreme Court held unconstitutional a Louisiana law that gave a husband exclusive
control of jointly held property. Kirchberg
v. Feenstra, 450 U.S. 455 (1981). Similarly, in Ephrahim v. Pastory, Civ. App. No. 70
(Tanz. High Ct. 1989), the High Court of Tanzania relied in part on the African Charter,
which had been ratified by the Tanzanian legislature, to hold that a woman could inherit
land. It was argued that under customary law a woman's right over property was limited,
but the court held that the Tanzanian Bill of Rights took precedence over customary law.
This case is discussed in Rebecca J. Cook, International Human Rights Law Concerning
Women: Case Notes and Comments, 23 Vand. J. Transnat'l L. 779, 815 (1990).
n110. Cap. 42:01.
n111. Unity Dow, Civ.
App. No. 4/91, at 88 (opinion of Aguda, J.).
n112. Attorney General
v. Unity Dow, Civ. App. No. 4191, at 88-89 (Bots. App. Ct. June 3, 1992) (opinion of
n113. Women and Law in
Southern Africa, supra note 34; The Legal Situation of Women in Southern Africa, supra
n114. Women and Law
Research in Southern Africa Project, Maintenance in Swaziland (1992).
n115. Id. at iii.
n116. See Abdullahi
Ahmed An-Na im, Civil Rights in the Islamic Constitutional Tradition: Shared Ideals and
Divergent Regimes, 25 J. Marshall L. Rev. 267 (1992). A weakness not apparent on the face
of the decision is that all the justices on the Court of Appeal are expatriates. Despite
some criticism from legal practitioners, the government has not moved expeditiously to
appoint Batswana judges.
n117. James Silk,
Traditional Culture and Human Rights, in Human Rights in Africa: Cross-Cultural
Perspectives 290 (Abdullahi A. An-Na im & Francis M. Deng eds., 1990). The United
Nations Human Rights Committee avoided the question whether the Canadian Indian Act that
denied a Native American woman her status as an Indian if she married a non-Native
American man but did not deny Indian status to a Native American man who married a
non-Native American woman constituted illegal sex discrimination under the International
Covenant on Civil and Political Rights. Lovelace v. Canada, Communication No. R. 624, 36
U.N. GAOR Supp. (No. 40) at 166, U.N. Doc. A/36/40, reprinted in 2 Hum. Rts. L.J. 158
(1981). The Committee was able to avoid the question because the Covenant did not take
effect in Canada until after Mrs. Lovelace's marriage. Nonetheless, the Committee found
that Canada violated Article 27 of the Covenant that guaranteed minorities the right to
enjoy their own culture in community with other members of their group. See Cook, supra
note 109, at 784-85; James W. Zion, North American Indian Perspectives on Human Rights, in
Human Rights in Cross-Cultural Perspectives 193-93 (Abdullahi An-Na'im ed. 1992).
n118. 2 Nig. Con. L.
Rep. 459 (Maiduguri High Ct. 1981), aff'd, 3 Nig. Con. L. Rep. 915 (Kaduna Fed. Ct. App.