# **Women’s Movements, Plural Legal Systems and the Botswana Constitution: How Reform Happens**

_“The Constitutional values of equality before the law and the increased leveling of the power structures with more and more women heading households and participating with men as equals in the public sphere and increasingly in the private sphere, demonstrate that there is no rational and justifiable basis for sticking to the narrow norms of days gone by when such norms go against current value systems.”_ _Justice Lesetedi, J.A of the Botswana Court of Appeal in the Mmusi case (September 2013)_<sup>_2_</sup>

# **Introduction**

Botswana’s constitutional approach to principles of gender equality and non-discrimination is reflective of the wider discourse over the interplay of plural legal systems in the region, and the legacy of the colonial experience in Southern Africa. The post-independence framework built on the institutional infrastructure put in place under the British Bechuanaland Protectorate. The different communities were governed by separate laws: Roman-Dutch law was the body of law governing non-Africans, while uncodified customary law regulated indigenous Batswana. This dual system in marriage laws continues today with the statutory marital property regime automatically applying only to the non-African Botswana community.<sup>3</sup> Indigenous Batswana have to opt into the statutory system; otherwise customary law automatically applies.<sup>4</sup> There is a gender equality clause in the Constitution but the non-discrimination clause specifically exempts personal laws (including statutory and customary laws) in the realm of marriage and inheritance laws from its application.<sup>5</sup> Moreover, prior to 2004, the nondiscrimination clause in the Constitution did not cover discrimination on the grounds of sex. Despite the shortcomings of the Constitution, women’s groups have still used it, in particular the Preamble, as a tool for change notably in the two landmark Court of Appeal cases of _Attorney General v Unity Dow_<sup>_6_</sup> in 1992 and the recent case _of Mmusi v Ramentele_ in 2013.<sup>7</sup> While the Unity Dow case concerned discriminatory statutory citizenship laws and the _Mmusi_ case centered on discriminatory customary inheritance laws, the approach taken by the court in these

> 2 <u>http://www.southernafricalitigationcentre.org/1/wp-content/uploads/2013/07/Mmusi-Court-of-Appeal-Judgment.pdf</u> at page 51 3 Indigenous Batswana are 93% of the total population while non-Africa Botswana citizens constitute 7%. CIA  World Fact book https://www.cia.gov/library/publications/the-world-factbook/geos/bc.html

> 4 Hallward-Driemeier and Hasan 2012

> 5 While Article 15, specified the basis on which discrimination is not permitted, namely   “tribe, place of origin, political opinions, colour or creed...”15(3)).  It was striking that the category of “sex” was originally absent from this provision but was added in 2005. Article 15(4) goes on to explicitly exempt laws dealing with “adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law” from the ambit of the Article 15 non-discrimination provision.

> 6 AG v Dow (2001) AHRLR 99 (BwCA 1992)

> 7 - Customary Court of Appeal, 22 November 2011, Civil Appeal Case 121/2007 and http://www.southernafricalitigationcentre.org/1/wp <u>content/uploads/2013/07/Mmusi-Court-of-Appeal-Judgment.pdf</u>

2