cases was fundamentally the same (Box 1). The constitutional principles of equality and nondiscrimination were seen as paramount and did not allow for discriminatory treatment of women.

# **Box 1. Catalyzing Change:  One Case at a Time.**

- In the case of _Attorney-General v Dow_ in 1992, Unity Dow, a Botswanan citizen married to a non-national, successfully challenged discriminatory statutory citizenship laws that prevented her from passing her citizenship to her children on the grounds that the law was unconstitutional<sup>1</sup> . There was no restriction in the Act for men married to non-nationals passing on citizenship to children. This landmark case ushered in a period of legislative reform, with revisions to the Citizenship Act and amendment of the text of the Constitution to include an explicit prohibition of discrimination on the basis of sex in 2004. While the Judge in the _Dow_ case made bold pronouncements about the hegemony of the Constitution over customary law, the facts of the case did not deal directly with customary law, and in reality left customary norms and institutions undisturbed. The subsequent reforms while sweeping, were nevertheless incomplete, and most glaring was the almost total exclusion of customary marriage and customary laws of inheritance from the ambit of the legislative reforms.

- In May 2012, the case of _Mmusi v Ramantele_ was heard by the Botswana High Court.  The applicant, Edith _Mmusi_ and her sisters were challenging the _Ngwaketse customary_ rule that only the youngest son can inherit the family home on the basis that they contributed to its upkeep and expansion, and that the rule violated their right to gender equality. The High Court held that the customary law was biased against women and as such unconstitutional.

“This gross and unjustifiable discrimination cannot be justified on the basis of culture...It cannot be an acceptable justification to say it is cultural to discriminate against women...Such an approach would...amount to the most glaring betrayal of the express provisions of the Constitution and the values it represents... [the law at issue] has no place in a democratic society that subscribes to the supremacy of the Constitution---a Constitution that entrenches the right to equality.” In September 2013, the Court of Appeal, the highest court in the country, definitively upheld this decision establishing it as a clear benchmark for future disputes in this area.

Source: Hallward-Driemeier and Hasan (2012) and Southern Africa Litigation Center (2012 & 2013) The case of _Mmusi_ means that the constitutional exemption for personal laws no longer seems to offer protection for discriminatory customary practices. The court pleadings reflect changing and sometimes conflicting social and legal justifications for both retention and reform of customary law in Botswana. This takes place in an arena where basic jurisdictional questions are still being negotiated and where customary laws and courts enjoy legitimacy among the vast majority of the population. While there is some evidence that the gap between customary and statutory laws and institutions is increasing because statutory courts are refusing to accept 3