A New Dawn for Women in Botswana: The Landmark Ruling on Women’s Rights to Inherit Property

The notion of inheritance is a universal concept referring to “the devolution of title to property under the law of descent and distribution”[1]. However each society has come up with its own laws and policies on inheritance. In the case of Botswana, the country relies on customary law. The Administration of Estates Act categorically states that devolution of property is according to the customs and practices of a particular ethnic group unless one formally excludes himself or herself from the ambit of customary law[2].

Under Customary law, a woman has no inheritance rights. When her husband dies, she is only entitled to remain in the matrimonial home. Similarly, daughters cannot inherit.  It is the eldest son who has the capacity to inherit the deceased fathers’ property[3]. This law has always been presumed to patriarchal in nature thus favoring men. Such a position presents a problem. Whereas in the case of matrimonial property a woman may have contributed to the acquisition of that property, upon the demise of her husband she is barred form inheritance. This is virtuously prejudicial to women. Such laws however exist despite the existence of Constitutional provisions prohibiting discrimination. Sadly, for a long time, women in Botswana have suffered from secondary status under law.

But all hope is not lost for women. In a landmark ruling, the High Court in Mmusi and Others v Ramantele and Another, held that the customary laws denying women their right to inheritance are unconstitutional. In his ruling, Judge Key Dingake emphasized that discrimination cannot be justified under any grounds, not even under cultural grounds. In the now oft quoted statement by the judge, he mentioned that “… the time has now arisen for the justices of this court to assume the role of the judicial midwife and assist in the birth of a new world struggling to be born.”[4] In its effect, any law that bars women from inheriting property is repugnant to the notions of justice and equality. Thus such laws should not be followed. 

The Mmusi case challenged a Ngwakeste customary law allowing the youngest son to inherit the family home. The petitioners in this case were three sisters who had lived in the family home and improved it. They claimed to be the rightful owners and consequently demanded their right to inheritance. But based on the discriminatory inheritance laws, their nephew contested the claim.  His challenge was founded on the fact that he was the only surviving male relative, thus the legal owner of the family home. Nonetheless, the challenge was defeated by the court which ruled in favour of the three women.

The courts’ ruling marks a watershed in the recognition of women’s rights. It has been welcomed by several advocacy groups. Priti Patel from the Southern Africa Litigation Centre stated that “[the ruling was a] significant step forward for women's rights not only in Botswana but in the southern Africa region”[5]. She further remarked that “the days of women suffering from secondary status under the law in Botswana are drawing to an end.”[6] Importantly, this ruling addresses the plight of women and should be a stepping stone for larger progress in fostering a culture of gender equality. As a consequence, governments should aim at endorsing laws that promote and protect the rights of all citizens irrespective of their sex.

By Brenda Mwale

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[1] Definition according to Black’s Law Dictionary,5^th Edition

[2] See Women’s Inheritance Rights in Africa: The Need to Integrate Cultural Understanding and Legal Reform

by Abby Morrow Richardson. Available at http://www.wcl.american.edu/hrbrief/11/2richardson.pdf (accessed on 20/10/2012)

[3] Human Rights Watch Africa, Botswana Second Class Citizens: Discrimination Against Women  Under Botswana's Citizenship Act(1994)  . Available at

http://www.hrw.org/sites/default/files/reports/BOTSWANA0994.pdf (accessed on 24/10/2012)

[4] Statement according to AFP news agency. Cited in http://africajournalismtheworld.com/2012/10/12/botswana-court-gives-inheritance-rights-to-women/ (accessed on 20/10/2012)

[5] Cited in http://www.bbc.co.uk/news/world-africa-19924723(accessed on 20/10/2012)

[6] Cited in http://www.womensagenda.com.au/talking-about/world-of-women/botswana-women-win-rights-to-inherit-family-land/20121015888 (accessed on 24/10/2012)