described in _Bhe_ is not dissimilar to the situation in Botswana, where the government has itself observed that “upon the death of their parents unmarried women are likely to be evicted by the heir”.<sup>56</sup> The nephew’s arguments were twofold: he argued that _Ngwaketse_ customary law did not discriminate, but merely differentiated, since both men and women could inherit. The only difference is that men inherited cattle and fields, while women inherited household goods, such as pots, pans and utensils. Furthermore, although the home was inherited by the last born, he was obliged by custom to make it available to his siblings for certain functions such as weddings and funerals. At the level of constitutional doctrine, he argued that Article 15 explicitly exempted personal law from the ambit of the prohibition against non-discrimination.

The High Court held that the customary law was biased against women and as such unconstitutional. The Court also rejected the view that it had to take into account public opinion which was not in favor of equal rights for women. It also referred to Botswana’s international obligations and endorsed numerous cases from Ghana, Kenya, Tanzania, India, Nigeria and South Africa all of which had set aside discriminatory customary laws.

The Judge summed up by stating that “[a] large number of the people of this country may not be conscious of their rights. Those who are conscious may lack resources to litigate. If it so happens that they have the fortune to approach the court; and their complaint has merit, then it is the sacred duty of this court to protect their rights at all costs”.<sup>57</sup> The Court of Appeal in September 2013 definitively ruled that discriminatory customary law favoring male heirs was unconstitutional and that in any event this was contrary to “morality, humanity or natural justice” according to the Customary Law Act and therefore unenforceable.<sup>58</sup>

# **_Conclusion_**

It is timely now to assess what has been gained, and what is left incomplete, in the twenty years following the _Dow_ judgment. The applicant in _Mmusi_ relied principally on the _Dow_ judgment, which without doubt represents the high watermark of constitutional adjudication in Botswana, and created the jurisprudential architecture required to protect gender equality. Much is at stake in the aftermath of the _Mmusi_ case. The question is whether _Mmusi_ takes Botswana one step forward and begins a vitally important conversation that could trigger far-reaching legislative reform of other discriminatory laws and ultimately lead to the removal of the constitutional exemption for personal laws. The argument that the Botswana public is not yet ready for gender equality was rejected by the court and in doing so has affirmed the importance of the Constitution as the benchmark for all sources of law.

> 56 Government of Botswana, CEDAW Report

> 57 Southern Africa Litigation Center 2012

> 58 The Court of Appeal did not reject the role that customary systems still had to play as any disputes as to who should take care of the property on behalf of the others would be determined by the elders and uncles of the heirs and in the absence of agreement, by the tribal chief.

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