the light of other constitutional provisions, including the rights and freedoms found in the Preamble. The court rejected the argument that the omission of the word ‘sex’ from the nondiscrimination clause was intentional and must be permitted, finding instead, that a “constitutional guarantee cannot be overridden by custom, and custom should as far as possible be read to conform to the Constitution”. He concluded that a constitutional right of nondiscrimination could not be taken away by inference and that “any limitations to fundamental rights and freedoms should be strictly constructed.” Similarly, he rejected empirical evidence that the people of Botswana favored the provisions of the Act, finding that such evidence could not assist with the proper construction of the Constitution.

In dealing with the question of whether the Citizenship Act fell within the specific exemption from the non-discrimination provisions given to personal laws, the judge found that citizenship, conferred by statute on a state-wide basis was not a matter for personal law. He urged that in interpreting a Constitution, a judge has to be cognizant that Botswana became part of the “comity of civilized nations” when its Constitution was drawn up, and that it would be wrong for its courts to interpret its legislation in a manner that conflicts with Botswana’s international obligations.

# **_The Fruits of Constitutional Challenge: A Wave Of Legal Reform_**

The _Dow_ case had important political and legislative consequences. In 1996 Botswana signified its willingness to embrace international norms on gender equality by acceding to CEDAW and, a year later, signing the Southern African Development Community Declaration on Gender and Development.<sup>30</sup> This presented two choices: amend the Citizenship Act of 1984 to comply with the Constitution, or amend the Constitution to permit gender discrimination. Ultimately the legislature changed the Citizenship Act as well as a series of far-reaching legislative reforms of the legal and economic status of civil law wives. In 1995, the Citizenship Act was amended to allow women married to foreigners the ability to transfer citizenship to their children. This was followed by legislation passed in 1996 amending subsections 18(3) and (4) of the Deeds Registry Act allowing married women (whether married in community of property or separate property regimes) to execute deeds and documents without their husband’s consent i.e. married women were given the power to acquire and hold immovable property for themselves separate from the joint estate. These provisions did not apply to customary marriages.

This was followed by a second wave of legislation: in 2001 the Marriage Act provided for the registration of customary marriages by district chiefs and headmen serving as registrars of marriage.<sup>31</sup> In 2004, the Abolition of Marital Power Act was passed, providing that women do not require the consent of their husbands to enter into contracts/transactions with banks and other financial institutions. However, this Act does not apply to customary marriages. In 2004, the

> 30 Signatories commit themselves to <mark>“Repealing and reforming all laws, amending constitutions and changing social practices which still subject women to discrimination, and enacting empowering gender sensitive laws” see (H) Declaration on Gender and Development 1980.</mark>

> 31 See section 27, Marriage Act 2001

7