12 October 2012, Gaborone – The Botswana Centre for Human Rights notes with appreciation, today’s High Court decision in the case of Mmusi and Others v Ramantele and Another. Judge Key Dingake ruled that the Ngwaketse customary law inheritance rule, which hitherto has provided for male-only inheritance of the family home, is discriminatory.
Attorney Tshiamo Rantao, representing Mmusi and her sisters, had argued that this provision is discriminatory on a number of grounds. These included section 3 of the Constitution of Botswana which provides for the right to equality and reference to relevant regional and international law. In contrast, Attorney Thabiso Tafila representing the nephew, Ramantele, had argued that this customary law did not discriminate against women, but merely differentiated between men and women. The Court asked the Attorney-General for an opinion to assist it in its decision-making. The Attorney-General argued that Botswana society was not ready for equality even though the customary rule is discriminatory. The Attorney-General argued that the rule should remain.
This ruling is particularly timely as Botswana will be appearing before the Human Rights Council in February 2013 for its second cycle of the Universal Periodic Review (UPR). In the first UPR review in 2008, the Human Rights Council (through Canada) had recommended that ‘Botswana increase efforts to raise awareness of the precedence of constitutional law over customary laws and practices to promote gender equality’. Botswana’s response was that ‘Botswana does not accept the recommendation. Customary law is not in conflict with constitutional law’. The Human Rights Council (through Mexico) had recommended that Botswana ‘adopt measures necessary for harmonising customary laws with international instruments’. Botswana had replied that it ‘does not consider its customary law to be in conflict with international instruments, and therefore does not accept the recommendation’.
Today’s ruling clearly indicates that the customary law inheritance rule which allows for male-only inheritance of the family home by the youngest-born son, is not in conformity with either the Constitution of Botswana or international instruments to which Botswana has committed herself.