Landmark case on women and inheritance in Botswana By MTOKOZISI DUBE in Gaborone | Thursday, October 11 2012 at 16:22
All roads lead to Botswana’s Gaborone High Court Friday for the landmark case challenging a customary law that only allows for male inheritance of the family home.
The case challenges what has been viewed as a discriminative customary law, which grants the youngest son the right to inherit the family home.
The law is said to be in violation of the right to equality, enshrined in the Botswana Constitution.
“Women’s equality is long overdue in Botswana. This landmark decision will determine whether Botswana is serious about ending discrimination against women or whether women will continue to have a secondary status under the law in Botswana,” said Priti Patel, Deputy Director of the Southern Africa Litigation Centre (SALC).
SALC is supporting the ground-breaking case.
At the centre of the case are claims by Ms Edith Mmusi and her two sisters, all of whom are over 65 years old, that they have lived in the family home and have spent their money on improving the homestead, hence they should inherit it.
Their claim is being challenged by their nephew who claims his father was given the home by the youngest born son.
Now, the argument is whether the customary law rule violates Ms Mmusi and her sisters’ right to equality under Section 3 of the Constitution in that it denies them the inheritance of the family home, primarily on the basis that they are women.
The Attorney-General is on record as saying despite the discriminatory nature of the customary law, Botswana was not ready for equality and the rule should stand.
However, the sisters point to decisions in other African countries including South Africa, where discriminatory customary laws have been brought in line with the Constitution .
They also argue that Botswana, under its international and regional law obligations, has agreed to eliminate all forms of discrimination against women and this rule should be brought in line with those legal obligations.
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