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Botswana women win landmark right to inherit under customary law

Source: Thomson Reuters Foundation - Wed, 4 Sep 2013 04:30 GMT
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In a file photo from 2004, a woman from Botswana's Bushmen tribe hangs laundry in Ghanzi township, 750 km north of the capital Gaborone, July 29, 2004. Reuters/Juda Ngwenya
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NEW YORK (Thomson Reuters Foundation) - A Botswana court made history Tuesday by upholding the right of women to inherit under customary law and rejecting the tradition of males as sole heirs, according to a report in The Maravi Post.

In a case heard by the appeals court in the capital city of Gaborone, the issue was whether daughters can inherit family property under customary law that long has held only males had the right of inheritance. 

Edith Mmusi, 80 years old, argued that since she lived in the ancestral family home, and she and her sisters had invested in improving it, she and her three sisters should inherit it.

Her claim was challenged by a nephew’s assertion that, as the male heir, he should inherit the homestead, although he had never lived there, because his father had been given the home by a male relative.

The judges unanimously ruled in favour of the four sisters, rejecting a long history of customary law that favoured males in inheritance matters.

“The judgment today by the Court of Appeal made it clear that women are not second class citizens in Botswana,” said Priti Patel, deputy director of the Southern Africa Litigation Centre (SALC), which supported the sisters’ case.

“Some people had feared that the Court of Appeal would set the fight for women’s rights back yet again,” said Patel. “But instead they ruled unanimously in favour of equality and against gender discrimination. It is a hugely important decision not only for Botswana but for women across southern Africa.”

Justice Isaac Lesetedi, who wrote the court’s decision, took note of the changes in society over the past 30 years in his opinion.  He wrote that 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.”

In his concurring opinion, Chief Justice Ian Kirby also firmly rejected tradition that favoured only male heirs. He wrote that “any customary law or rule which discriminates in any case against a woman unfairly solely on the basis of her gender would not be in accordance with humanity, morality or natural justice. Nor would it be in accordance with the principles of justice, equity and good conscience.”

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