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8. Court of Appeal Judgements |
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This appeal is brought by the Attorney-General against the judgement given
by Horwitz A.J. in favor of Unity Dow in her claim that her constitutional
rights had been infringed by certain specified provisions of the Citizenship
Act 1984. |
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The facts of the case which gave cause for the respondent's complaint were
well summarized by the learned judge a quo, and for convenience and
with due apologies I will repeat that summary. As he said: |
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"The Applicant Unity Dow is a citizen of |
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Prior to their marriage on the 7th of March 1984 a child was
born to them on the 29th October, 1979 named Cheshe Maitumelo Dow
and after the marriage two more children were born Tumisang Tad Dow born on
26th March 1985 and Natasha Selemo Dow born on 26th
November 1987. |
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She states further in her founding affidavit that "my family and I
have established our home in Raserura Ward in Mochudi and all the children
regard that place and no other as their home." |
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In terms of the laws in force prior to the Citizenship Act of 1984 the
daughter born before the marriage is a Botswana citizen and therefore a
Motswana, whereas in terms of the Citizenship Act of 1984 the children born
during the marriage are not citizens of Botswana (although children of the
same parents), and are therefore aliens in the land of their birth." |
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The respondent claimed that the provisions of the Citizenship Act of 1984
which denied citizenship to her two younger children were sections 4, 5.
Those sections read as follows: |
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4. (1) A person born in |
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(a) his father was a citizen of |
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(b) in the case of a person born out of wedlock, his mother was a citizen
of |
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(2) A person born before the commencement of this Act shall not be a
citizen by virtue of this section unless he was a citizen at the time of such
commencement. |
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[END OF PAGE 123]
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5. (1) A person born outside |
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(a) his father was a citizen of |
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(b) in the case of a person born out of wedlock, his mother was a citizen
of |
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(2) A person born before the commencement of this Act shall not be a citizen
by virtue of this section unless he was a citizen at the time of such
commencement. |
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I should hereby add that the respondent's case before the court a quo also
embraced discriminatory treatment which she claimed the Act gave to alien men
married to |
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The case which the respondent sought to establish and which was accepted
by the Court a quo was captured by paragraphs 13 to 15, and paragraphs
18, 19, 21 and 22 of her founding affidavit. They read as follows: |
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13. I am prejudiced by the section 4(I) of the Citizenship Act by reason
of my being female from passing citizenship to my two children Tumisang and
Natasha. |
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14. I am precluded by the discriminatory effect of the said law in that my
said children are aliens in the land of mine and their birth and thus enjoy
limited rights and legal protections. |
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15. I verily believe that the discriminatory effect of the said sections,
(4 and 5 supra) offend against section 3(a) of the Constitution of the |
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18. I am desirous of being afforded the same protection of the law as a
male |
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19. As set out above, I verily believe and state that the provisions of
section 3 of the Constitution, have been contravened in relation to myself. |
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21. As a citizen of the |
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22. I verily believe that the provisions of the Constitution have been
contravened in relation to myself. |
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The sections of the Constitution of the Republic which the respondent
prayed in aid in this regard, therefore, are sections 3 and 14. Section 3 is
the section which deals with the fundamental rights and freedoms of the
individual. Sec- |
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[END OF PAGE 124]
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tion 14 deals with the protection of the freedom of movement. I shall have
occasion to recite them and to refer to them in some detail in the course of
this judgement. |
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After hearing the respondent, then the applicant in the case, and the
Attorney General in opposition, the learned judge a quo found in favor
of the former. The relevant parts of his judgement are as follows: |
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"I therefore find that section 4 [of the Citizenship Act] is
discriminatory in its effect on women in that, as a matter of policy, |
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(i) It may compel them to live and bear children outside of wedlock. |
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(ii) Since her children are only entitled to remain in |
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(iii) The residence permits are granted for no more than two years at a
time, and if the applicant's husbands permit were not renewed both he and
applicant's minor children would be obliged to leave |
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(iv) In addition applicant is jointly responsible with her husband for the
education of their children. Citizens of |
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(v) Since the children would be obliged to travel on their father's
passport the applicant will not be entitled to return to |
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What I have set out at length may inhibit women in |
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It seems to me that the effect of section 4 is to punish a female citizen
for marrying a non-citizen male. For this she is put in the unfavorable
position in which she finds herself vis-à-vis her children and her country. |
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The fact that according to the Citizenship Act a child born to a marriage
between a citizen female and a non-citizen male follows the citizenship of
the father [many] not in fact have that result. |
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It depends on the law of the foreign country. The result may be that the
child may be rendered stateless unless its parents emigrate. If they are
forced to emigrate then the unfortunate consequences which I have set out
earlier in this judgement may ensue. |
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I therefore come to the conclusion that the application succeeds. |
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I have also come to the conclusion that section 5 of the Act must join the
fate of section 4." |
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[END OF PAGE 125]
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The appellant has appealed against this decision on several grounds. He
complains that the Court a quo erred in holding that the applicant had
sufficiently shown that any of the provisions of sections 3-16 (inclusive) of
the Constitution had been, was being, or was likely to be contravened in
relation to her by reason of the provisions of section 4 or section 5 of the
Citizenship Act so as to confer on her locus standi to apply to the
High Court for redress pursuant to section 18 of the Constitution. After
holding that the provisions of the Constitution should be given a
"generous interpretation", the Court a quo erred in failing
to give any or any adequate effect to other principles of construction, in
particular, the principle that an Act of the National Assembly must be
presumed to be infra vires the Constitution: the principle that an Act or
instrument, including the Constitution should be construed as a whole; and
with regard to section 15 (3) of the Constitution, the principle of "inclusio
unius exclusio alterius", to which effect is given in section 33 of
the Interpretation Act. The Court a quo also erred, in that instead of
holding that the word "sex" had been intentionally omitted from
section 15 (3) of the Constitution so as to accommodate, subject to the
fundamental rights protected by section 3 thereof, the patrilineal structure
of Botswana society, in terms of the common law, the customary law, and
statute law, it held that section 15 (3) of the Constitution merely listed
examples of different grounds of discrimination and was to be interpreted as
including discrimination on the grounds of "sex", and that section
4 and/or section 5 of the Citizenship Act denied to the respondent by reason
of sex her rights under the Constitution. The rights mentioned in the
appellant's grounds of his appeal being the respondent's: her right to
liberty and/or her right to the protection of the law under section 3 of the
Constitution, her right to freedom of movement and immunity from expulsion
from Botswana under section 14 of the Constitution, and her protection from
subjection to degrading punishment or treatment under section 7 of the
Constitution. According to the complaint neither section 4 nor section 5 in
fact denied the respondent any of the rights and protections mentioned.
Further, the complaint went on, the Court a quo, having extended the
definition of discrimination in section 15 (3) of the Constitution, also
erred in failing to consider and apply the limitations to the rights and
freedoms protected by section 15 of the Constitution which are contained in
sub-section 4 (c) (the law of citizenship being a branch of personal law),
sub-section (4) (e) and sub-section (9) (to the extent that the Citizenship
Act re-enacts prior laws), or to avert its mind to the special nature of
citizenship legislation, and the fact that citizenship was not a right
protected under Chapter II of the Constitution, nor was any right "to
pass on citizenship" there created or protected. Finally, the complaint
stated, the Court a quo erred in holding that section 4 and section 5
of the Citizenship Act were discriminatory in their effect or contravened
section 15 of the Constitution. |
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Argument was offered before us on most of the grounds stated above, but
rearranged to follow a somewhat different format. Apart from the locus
standi point, the basic question was whether upon a proper interpretation
of Chapter II of the Constitution, the Chapter on fundamental rights and
freedoms of the individual, especially sections 3, 14, 15 and 18, the
constitutional right which the respondent claimed to have been infringed had
actually not been infringed |
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[END OF PAGE 126]
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with respect to her by sections 4 or 5 of the Citizenship Act of 1984. The
other submissions were formulated as argument around that central theme. |
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It will be recalled from her founding affidavit which has been recited
above that the respondent complained in the court below that she was
prejudiced by section 4(1) of the Citizenship Act by reason of her being
female from passing citizenship to her two children Tumisang and Natasha;
that the law in question had discriminatory effect in that her children named
were aliens in her own land and the land of their birth, and they thus
enjoyed limited rights and legal protections therein; that she believed that
the discriminatory effect of specified sections of the Citizenship Act
offended against section 3 (a) of the Constitution; and that she believed
that the provisions of section 3 of the Constitution had been contravened in
relation to herself. |
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We are here faced with some difficult questions of constitutional interpretation.
But our problems are to some extent eased by the fact that not all matters
for our consideration were in dispute between the parties: neither party
maintained that the Constitution had to be construed narrowly or
restrictively. Both parties agreed that a generous approach had to be taken
in Constitutional interpretation. Both sides also agreed that section 3 of
the Constitution was a substantive section conferring rights on the
individual. This, in my view, put an end to any argument about whether the
section was a preamble or not. It also, in my view, totally undermines any
judgement based on the premise that section 3 is only a preamble. The
sections of the Constitution which arose for construction were also, more or
less, agreed. |
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With regard to the approach to the interpretation of the Constitution,
learned counsel for the appellant further drew our attention to the
Interpretation Act of 1984 (Cap. 01:01) which in section 26 provides that: |
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" 26. Every enactment shall be deemed remedial and for the public
good and shall receive such fair and liberal construction as will best attain
its object according to its true intent and spirit." |
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He then submitted that by section 2 of the Act, each provision of the Act
applied to every enactment, whether made before, on or after the commencement
of the Act, including the Constitution. This section, he submitted,
therefore, must be the section which has to be applied to the present case. I
agree that the provisions of the Interpretation Act apply to the
interpretation of the Constitution. The section cited, however, is not
inconsistent with viewing the Constitution as a special enactment which in many
ways differs from the ordinary legislation designed, for example, to
establish some public utility or to remedy some identified defect in the body
politic. |
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A written constitution is the legislation or compact which establishes the
state itself. It paints in broad strokes on a large canvas the institutions
of that state; allocating powers, defining relationships between such
institutions and between the institutions and the people within the
jurisdiction of the state, and between the people themselves. A constitution
often provides for the protection of the rights and freedoms of the people,
which rights and freedoms have thus to be respected in all further state
action. The existence and powers of the institutions of state,
therefore, depend on its terms. The rights and freedoms, where given by it,
also depend on it. No institution can claim to be above the |
[END OF PAGE 127]
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constitution; no person can make any such claim. The constitution contains
not only the design and disposition of the powers of the state which is being
established but embodies the hopes and aspirations of the people. It is a
document of immense dimensions, portraying, as it does, the vision of the
peoples' future. The makers of a constitution do not intend that it be
amended as often as other legislation; indeed, it is not unusual for
provisions of the constitution to be made amendable only by special
procedures imposing more difficult forms and heavier majorities of the
members of the legislature. By nature and definition, even when using
ordinary prescriptions of statutory construction, it is impossible to
consider a constitution of this nature on the same footing as any other
legislation passed by a legislature which is itself established, with powers
circumscribed, by the constitution. The object it is designed to achieve
evolves with the evolving development and aspirations of its people. In terms
of the Interpretation Act, the remedial objective is to chart a future for
the people, a liberal interpretation of that objective brings into focus
considerations which cannot apply to ordinary legislation designed to fit a
specific situation. As Lord Wright put it when dealing with the Australian
case of James v. Commonwealth of Australia (1936) A.C. 578 at page
614: |
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"It is true that a Constitution must not be construed in any narrow
and pedantic sense. The words used are necessarily general, and their full
import and true meaning can often only be appreciated when considered, as the
years go on, in relation to the vicissitudes of fact which from time to time
emerge. It is not that the meaning of the words changes, but the changing
circumstances illustrate and illuminate the full import of that meaning."
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We in this Court, however, are not bereft of previous authority of our own
to guide us in our deliberations on the meaning of the Botswana Constitution.
The present case does not present us with a first opportunity to explore
unchartered waters and to interpret the Constitution free from all judicial
authority. We do have some guidance form previous pronouncements of this
Court as to the approach which we should follow in this matter. In Attorney
General v. Moagi 1981 B.L.R. 1 at page 32, Kentridge J.A. said: |
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"...a constitution such as the Constitution of Botswana, embodying
fundamental rights, should as far as its language permits be given a broad
constriction. Constitutional rights conferred without express limitation
should not be cut down by reading implicit restrictions into them, so as to
bring them into line with the common law." |
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In Petrus and Another v. The State (1984) B.L.R. 14, my brother,
Aguda J.A. had occasion to review the courts' approach to constitutional
construction. In that review, he said at page 34: |
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"It was once thought that there should he no difference in approach
to constitutional construction from other statutory interpretation. Given the
British system of Government and the British judicial set-up, that was
understandable, it being remembered that whatever statutes that might have
the look of constitutional enactment in |
[END OF PAGE 128]
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Aguda J.A. then cited in support, the view of Higgins J. in the Australian
High Court in Attorney-General for New South Wales v. Brewery Employees
Union of New South Wales (1908) 6 C.L.R. 469 at pp. 61 I -612, that: |
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"...although we interpret the words of the Constitution on the same
principles of interpretation as we apply to any ordinary law, these very
principles of interpretation compel us to take into account the nature and
scope of the Act that we are interpreting - to remember that it is a
Constitution a mechanism under which laws are to be made and not a mere Act
which declares what the law is to be." |
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He also cited Sir Udo Udoma of the Supreme Court of Nigeria in Rain
Rabin v. The State (1981) 2 N.C.L.R. 293 ATP 326 where that learned judge
said: |
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"...the Supreme Law of the Land; that it is a written, organic
instrument meant to serve not only the present generation, but also several
generations yet unborn... that the function of the Constitution is to
establish a framework and principles of government, broad and general in
terms, intended to apply to the varying conditions which the development of
our several communities, must involve, ours being a plural, dynamic society,
and therefore, more technical rules of interpretation of statues are to some
extent inadmissible in a way as to defeat the principles of government
enshrined in the Constitution." |
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Finally, he cited Justice White of the Supreme Court of the United States
in South Dakota v. North Carolina (1940) 192 U.S. 268; 48 ED. 448 at
p.465, where the learned judge said: |
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"I take it to be an elementary rule of constitutional construction
that no one provision of the Constitution is to be segregated from all the
others, and to be considered alone but that all the provisions bearing upon a
particular subject are to be brought into view and to he so interpreted as to
effectuate the great purpose of the instrument." |
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Aguda J.A. concludes his review in the Petrus Case by saying: |
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"...it is another well known principles of construction that exceptions
contained in constitutions are ordinarily to be given strict and narrow,
rather than broad constructions. Corey v. Knight (1957) Cal App.
2d.671; 310 p. 2d.673 at p.679". |
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With such pronouncements from our own Court as guide, we do not really
need to seek outside support for the views we express. But just to show that
we are not alone in the approach we have adopted in this country towards
constitutional interpretation, I refer to similar dicta of judges from
various jurisdictions such as Wilberforce in Minister of Home Affairs
(Bermuda) and Another v. Fisher and Another [ 1980) A.C. 319 al pages 328
to 329; Dicksen C.J. in the Canadian case of R. v. Big M Drug Mart Ltd. (1985)
1 S.C.R. 295 at page 344' the Namibian case of Mwondingi v. Minister of
Defence, Namibia 1991 (1) S.A. 851 (run) at 8576 -858B; and the Zimbabwe
cases of Hewlett v. |
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Minister of Finance and Another 1982 (1) S.A. 490(c) at 495D-496E
and Ministry of Home Affairs v. Bickle and Others 1984 (2) S.A. 439
per Georges CJ at page 447; United States cases such as Boyd v. United
States I 16 U.S. 616 at 635 and Trop v. Dunes 356 U.S. 86. |
[END OF PAGE 129]
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In my view, these statements of learned judges who have had occasion to
grapple with the problem of constitutional interpretation capture the spirit
of the document they had to interpret, and I find them apposite in
considering the provisions of the Botswana Constitution which we are now
asked to construe. The lessons they teach are that the very nature of a
constitution requires that a broad and generous approach be adopted in the
interpretation of its provisions; that all the relevant provisions bearing on
the subject for interpretation be considered together as a whole in order to
effect the objective of the constitution; and that where rights and freedoms
are conferred on persons by the constitution, derogations from such rights
and freedoms should be narrowly or strictly construed. |
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It is now necessary to examine the constitutional provisions giving rise
to the dispute in this case. |
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Section 3 states that: |
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"3. Whereas every person in Botswana is entitled to the fundamental
rights and freedoms of the individual, that is to say, the right, whatever
his race, place of origin„ political opinions, colour, creed or sex, but
subject to respect for the rights and freedoms of others and the public
interest to each and all the following freedoms, namely: |
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(a) life, liberty, security of the person and the protection of the law; |
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(b) freedom of conscience, of expression and of assembly and association; and
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(c) protection for the privacy of his home and other property and from
deprivation of property without compensation, the provisions of this Chapter
shall have effect for the purpose of affording protection to those rights and
freedoms subject to such limitations of that protection as are contained in
those provisions, as being limitations designed to ensure that the enjoyment
of the said rights and freedoms by any individual does not prejudice the
rights and freedoms of others or the public interest."" |
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The first impression gained from the opening "whereas" is that
section 3 is a preamble. If it were so, different consequences might arise
from it when compared with the consequences arising from it being a
substantive provision conferring rights on the individual. In section 272 of
Bennion on Statutory Interpretation the effect of a preamble is given
as follows: |
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"The preamble is an optional feature in public general Acts, though
compulsory in private Acts. It appears immediately after the long title, and
states the reason for passing the Act. It may include a recital of the
mischief towards which the Act is directed. When present, it is thus a useful
guide to the legislative intention." |
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Obviously section 3 is not a preamble to the whole of the Constitution. An
argument made that it is a preamble, therefore would have to limit its
operative effect as such, if any, to Chapter II on the Protection of
Fundamental Rights and Freedoms of the Individual. Were it a preamble, it
would have to be taken as a guide to the intention of the framers of the
Constitution in enact- |
[END OF PAGE 130]
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ing the provisions of that Chapter. |
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A careful look at the section, however, shows that it was not intended
merely as a preamble indicating the legislative intent for the provisions of
Chapter II at all. The internal evidence from the structure of the section is
against such an interpretation. Although the section begins with
"whereas", it accepts that: |
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"every person in |
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is, and continues to enact positively that: |
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"the provisions of this Chapter shall have effect for the purpose of
affording protection to those rights and freedoms (i.e. the rights and freedoms
itemised in (a), (b), and (c) of section 3, subject to such limitations as
are contained in those provisions (i.e. the provisions in the whole of
Chapter II), being limitations designed to ensure that the enjoyment of the
said rights and freedoms by any individual does not prejudice the rights and
freedoms of others or the public interest." |
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That positively enacted part of section 3 alone should be sufficient to
refute a suggestion that it is a mere preamble. But section 18 (1) of the
Constitution which finds itself in the same Chapter II put the matter beyond
doubt. It provides that: |
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"18. The argument has been advanced that even if rights and freedoms are
conferred by section 3, that section makes no mention of discrimination, and
therefore, that section does not deal with discrimination at all.
Discrimination is mentioned only in section IS of the Constitution; it is,
therefore, that section only which we ought to look at in a case which
basically alleges discrimination." |
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But that argument assumes that section 15 is an independent section
standing alone in Chapter II of the Constitution. It is only if section 15 is
considered as standing on its own, separate and distinct, conferring new
rights unconnected with the rights and freedoms stated in section 3 that it
can be said that section 15 has no connection with section 3. As I have tried
to demonstrate by the examination of the wording used in section 3, that
assumption cannot be right. The wording is such that the rest of the
provisions of Chapter II, other than those dealing with derogations under the
general powers exercisable in times of war and emergency in section 17 and
18, and the interpretation section 19 of the Constitution, have to be read in
conjunction with section 3. They must be construed as expanding on or placing
limitations on section 3, and be construed within the context of that
section. As pointed out before, the wording of section 3 itself shows clearly
that whatever exposition, elaboration or limitation is found in sections 4 to
19, must be exposition, elaboration or limitation of the basic fundamental
rights and freedoms conferred by section 3. Section 3 encapsulates the sum
total of the individual's rights and freedoms under the Constitution in
general terms, which may be expanded upon in the expository, elaborating and
limiting sections ensuing in the Chapter. We are reminded of the lesson that
all the provisions of a constitution which have a bearing on a particular
interpretation have to be read together. If that is the case then sec- |
[END OF PAGE 131]
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tion 15 cannot be taken in isolation as requiring separate treatment from
the other relevant provisions of Chapter II, or indeed from those of the
rest, of the Constitution. |
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Support is given to this view by a look at other provisions of Chapter II.
A number of rights and freedoms dealt with in section 3 are not specifically
referred to in the express terms in which they are later dealt with in the
succeeding sections of Chapter II. |
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Take, for example, section 6 of Chapter II which details the protection
against slavery, servitude or forced labor. Section 3 does not specifically
mention the words "slavery", "servitude" or "forced
labor". But clearly these words can, and in the structure of the
Constitution must, be subsumed under some general expression or term in
section 3. That section confers the right and freedom to "liberty"
and "security of the person". A person who is put in slavery or
servitude or made to do forced labor cannot be said to enjoy a right to
liberty or security of his person. Infringing section 6 will automatically
infringe section 3. Take section 7 of the same |
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The |
[END OF PAGE 132]
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mentioned in section 3, therefore, does not mean that discrimination, in
the sense of unequal treatment, is not proscribed under the section. |
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I also conclude from the foregoing that the fact that discrimination is
not mentioned in section 3, does not detract from section 3 being the key or
umbrella provision conferring rights and freedoms under the Constitution
under and in relation to which the other sections in Chapter II merely
expound further, elaborate or limit those rights and freedoms. Section 15,
which specifically mentions and deals with discrimination, therefore does
not, in my view, confer an independent right standing on its own. |
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One other possible argument may be advanced against section 3 as the
section of the Constitution conferring rights and freedoms: it arises from
the question whether the proposition can seriously be maintained that the
section gives the same right to every person in |
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Aliens, on the other hand, have their rights and freedoms curtailed by,
for example, section 14 (3)(b) which permits "the imposition of restrictions
on the freedom of movement of any person who is not a citizen of |
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Where other derogations or limitations are made to the general rights and
freedoms conferred by section 3 of the Constitution, they are made in
sections 4 to 16 or through specific provisions of the Constitution which are
inconsistent with the rights or freedoms conferred. |
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If my reading of sections 3 to 16 of the Constitution is correct, and if
section 3 provides, as I think, equal treatment to all save in so far as
derogated from or limited by other sections, the question in this particular
case is whether and how section 15 derogates from the rights and freedoms
conferred by section 3(a) which requires equal protection of the law to ail
persons irrespective of sex. |
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The case made for the appellant in this respect is, to put it
(succinctly), that section 15 is the section of the Constitution which deals
with discrimination; that, significantly, whereas section 3 confers rights
and freedoms irrespective |
[END OF PAGE 133]
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of sex, the word "sex" is not mentioned among the identified
categories in the definition of "discriminatory" treatment in
section 15(3); that the omission of sex is intentional and is made in order
to permit legislation in Botswana which is discriminatory on grounds of sex;
that discrimination on grounds of sex must be permitted in Botswana society
as the society is patrilineal and, therefore, male oriented. The appellant
accepts that the Citizenship Act 1984 is discriminatory, but this was
intentionally made so in order to preserve the male orientation of the
society; that Act, though discriminatory, was not actually intended to be so,
its real objective being to promote the male orientation of society and to
avoid dual citizenship, the medium for achieving these ends being to make
citizenship follow the descent of the child; and that even if the Act were as
a result discriminatory, it was not unconstitutional. |
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Before I attempt to answer the question whether any of the sections of the
Citizenship Act infringe the rights and freedoms conferred by section 3(a),
as the respondent has complained that they do, it is necessary that one or
two incidental matters put forward in support of the central theme described
be disposed of. It was submitted by the appellant that Parliament could enact
any law for the peace, order and good government of |
[END OF PAGE 134]
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power of Parliament "to make laws for the peace, order and good
government of |
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As the legislative powers of Parliament in Botswana are limited by the
provisions of the Constitution, where the Constitution lays down matters on
which Parliament cannot legislate in ordinary form, as it does in Chapter II,
for example, or guarantees to the people certain rights and freedoms,
Parliament has no power to legislate by its normal procedures in
contravention or derogation of these prescriptions. This view of a
constitution is, of course, contrary to the law and practice of the British
Constitution under which the normal canons of Construction of Acts of Parliament
are formulated. |
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Our attention has been drawn to the patrilineal customs and traditions of
the |
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In this connection a document entitled Report of the Law Reform
Committee on: (I) Marriage Act (ii) Law of Inheritance (iii) Electoral Law
and (iv) Citizenship Law was put before us for our consideration. The
report apparently covered the activities of the Committee from June to
December 1986, and was laid before Parliament in March 1989. The committee
had, apparently, gone round the country finding out the reaction of the
people to the laws named. The authority for placing the report before us was
said to be section 24(I) of the Interpretation Act which provides that: |
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24(1) For the purpose of ascertaining that which an enactment was made to
correct and as an aid to the construction of the enactment a court may have
regard to any text-book or other work of reference, to the report of any
commission of enquiry into the state of the law, to any memorandum published
by authority in reference to the enactment or to the Bill for the enactment,
to any relevant international treaty, agreement or convention and to any
papers laid before the National Assembly in reference to the enactment or its
subject-matter, but not to the debates in the Assembly. |
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The object of putting the report before us was, presumably, to demonstrate
that the majority of the people whose views were collected wanted or agreed
to the differentiation or discrimination made between men and women under the
Citizenship Act. It is noticed, however, from the report itself that the
expression of the people was made in the form of answers to questions. The |
[END OF PAGE 135]
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manner in which those questions were put does not appear in the report.
Neither do we know the explanations made to the people before they came out
with the recorded answers. There is nowhere in the report where a reference
is made to the fact that the provisions of the Citizenship Act, at least, may
possibly be affected by the Constitution. For this reason, the report loses
much of its value as an expression of the people after all relevant facts and
considerations had been placed before them. |
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Besides, the report is a document prepared some years after both the
Constitution and the Citizenship Act were passed. The Constitution was
promulgated in 1966. The Act was passed in 1984. The activities of the
Committee resulting in the report were in 1986, and the document was laid
before Parliament in 1989. I must say that with the interpretation of the
provisions of the Citizenship Act I have no difficulty whatsoever. Its
provisions are clear. What difficulty I have is in respect to the
interpretation of the Constitution. The report of the Committee does not
purport to deal with that. As it is the meaning of the Constitution which we
are trying to unravel in this case, not the Citizenship Act, I would have
derived some value from the report if the activities of the Committee leading
to it had been before, not after, the Constitution was promulgated. For then,
I would have got some indication of what the people of |
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It seems to me that the argument of the appellant was to some extent
influenced by a premise that citizenship must necessarily follow the
customary or traditional systems of the people. I do not think that view is
supported by the development of the law relating to citizenship. |
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"The legal link between an individual and a particular state or
political community under which the individual receives certain rights,
privileges, and protections in return for allegiance and duties. Whether an
individual has citizenship of a particular state depends on its own legal
system and by reason of differences between legal systems some individuals
may be stateless and others have citizenship of more than one state. |
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In ancient |
[END OF PAGE 136]
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had a restricted concept of citizenship, but gradually extended it until
in AD 212, Caracalla's Constitutio Antoniana gave citizenship to mast
of the freemen of the Empire. The concept was in abeyance in the middle ages
until city dwellers became a third force in politics, with the nobles and
clergy. Citizenship was the relationship to a city implying certain
liberties. The American and French Revolutions gave a new meaning to
citizenship, contrasting it with `subject', while in the twentieth century
the movement for women's rights has further extended the concept." |
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Mr. Justice Gray of the American Supreme Court in United States v. Wong
Ark 169 |
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"II. The Fundamental principle of the common law with regard to
English nationality was birth within the allegiance, also called `legality',
`obedience', `faith', or `power', of the King. The principle embraced all
persons born within the king's allegiance and subject to his protection... |
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It thus clearly appears that by the law of England for the last three
centuries, beginning before the settlement of this country, and continuing to
the present day, aliens, while residing in the dominions possessed by the
Crown of England, were within the allegiance, the obedience, the faith or
loyalty, the protection, the power, the jurisdiction, of the English
sovereign; and therefore every child born in England of alien parents was a
natural-born subject, unless the child of an ambassador or other diplomatic
agent of a foreign state, or of an alien enemy in hostile occupation of the
place where the child was born." |
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"III. The same rule was in force in all the English colonies upon
this continent down to the time of the Declaration of Independence, and in
the |
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That must also have been the position with |
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The old classic Oppenheim on International Law Vol. 1 (Peace) (8th
ed. 1955) gives the international law aspect of the matter. At page 645, it
makes the following distinction: |
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"'Nationality' in the sense of citizenship of a certain State, must
not be confused with `nationality' as meaning membership of a certain nation
in the sense of race. Thus, according to International Law, Englishmen and
Scotsmen are, despite their different nationality as regards race, all of
British nationality as regards their citizenship. Thus further, although all
Polish individuals are of Polish nationality qua race, for many
generations there were no Poles qua citizenship." |
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By this, I understand that |
[END OF PAGE 137]
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guardianship, there is no historical reason for compelling any state to so
base its citizenship laws, especially where there is some serious obstacle
like a constitutional guarantee in the way. Even in Britain, where until the
Guardianship Act of 1973, all parental rights, including guardianship, were
vested in the father, unless the child were born out of wedlock, nationality
was not based on descent or guardianship. I find, therefore, no necessary
nexus mandating that citizenship should be based on traditional or customary
ideas of descent or guardianship. The British concept of citizenship, which
at one time must have governed the position in |
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"By way of a conclusion we may consider the position of the alien who
strictly had no civil liberties. There were many reasons for this. He was
often a merchant intent on the dangerous operation of taking money out of the
realm; he was sometimes a usurer; he might be a cleric with obnoxious bulls
and provisions from |
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It is clear that what the state of |
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I may mention also in passing that the fact that different states follow
different criteria in conferring citizenship means that whatever Botswana
provides in its citizenship laws may not achieve the objective of eliminating
dual citizenship, if that indeed is what is desired, because where some
states confer citizenship by birth to parents whether through the male or the
female line, and others confer citizenship through birth within a territorial
area, cases will occur where a child born to citizens of state A, which
follows the descent principle, within the territorial jurisdiction of state
B, which follows the territorial area principle, will initially acquire the
citizenship of both states A and B. |
[END OF PAGE 138]
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Other combinations between the parents may produce similar results. In
this very case, the respondent's eldest child, Cheshe, who acquired |
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As far as the present case is concerned, the more important pre-requisite
which each legislation must comply with is the requirement that the
legislative formula chosen must not infringe the provisions of the
Constitution. It cannot be correct that because the legislature is entitled
to lay down the principles of citizenship, it should, in doing so, flout the
provisions of the Constitution under which it operates. Where the legislature
is confronted with passing a law on citizenship, its only course is to adopt
a prescription which complies with the imperatives of the Constitution,
especially those which confer fundamental rights to individuals in the State.
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With those considerations in mind, I come now to deal with the central
question, namely, whether section I S of the Constitution allows
discrimination on the ground of sex. The provisions of the section which are
for the moment relevant to this issue are the subsections (I), (2), (3), and
(4). They state as follows: |
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"I5. (I) Subject to the provisions of Subsections (4), (5) and (7) of
this section no law shall make any provision that is discriminatory either of
itself or in its effect. |
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(2) Subject to the provisions of subsections (6), (7), and (g) of this
section, no person shall be treated in a discriminatory manner by any person
acting by virtue of any written law or in the performance of the functions of
any public office or any public authority. |
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(3) In this section, the expression "discriminatory" means
affording different treatment to different persons, attributable wholly or
mainly to their respective descriptions by race, tribe, place of origin,
political opinions, colour or creed whereby persons of one such description
are subjected to disabilities or restrictions to which persons of another
such description are not made subject or accorded privileges or advantages
which are not accorded to persons of another such description. |
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(4) Subsection (1) of this section shall not apply to any law so far as
that law makes provision (a) for the appropriation of public revenues or
other public funds; |
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(b) with respect to persons who are not citizens of |
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(c) with respect to adoption, marriage, divorce, burial, devolution of
property on death or other matters of personal law; |
[END OF PAGE 139]
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(d) for the application in the case of members of a particular race,
community, or tribe of customary law with respect to any matter whether to
the exclusion of any law in respect to that matter which is applicable in the
case of other persons or not; or |
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(e) whereby persons of any such description as is mentioned in subsection
(3) of this section may be subjected to any disability or restriction or may
be accorded any privilege or advantage which, having regard to its nature and
to special circumstances pertaining to these persons or to persons of any
other such description, is reasonably justifiable in a democratic society. |
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Subsection (1) mandates that "no law shall make any provision that is
discriminatory either of itself or in its effect." Subsection (2)
mandates that "no person shall be treated in a discriminatory manner by
any person acting by virtue of any written law or in the performance of the
functions of any public office or any public authority." Subsection (3)
then defines discriminatory means in this section. It is "affording
different treatment to different persons, attributable wholly or mainly to
their respective descriptions by race, tribe, place of origin, political
opinions, colour or creed whereby persons of one such description are
subjected to disabilities or restrictions to which persons of another such
description are not made subject or accorded privileges or advantages which
are not accorded to persons of another such description." The word
"sex" is not included in the categories mentioned. According to the
appellant, therefore, "sex" had been intentionally omitted from the
definition in section 15(3) of the Constitution so as to accommodate, subject
to the fundamental rights protected by section 3 thereof, the patrilineal
structure of |
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If that is so, the next question is whether the definition in section
15(3) in any way affects anything stated in section 3 of the Constitution. We
must always bear in mind that section 3 confers on the individual the right
to equal treatment of the law. That right is conferred irrespective of the
person's sex. The definition in section 15(3) on the other hand is expressly
stated to be valid "in this section." In that case, how can it be
said that the right which is expressly conferred is abridged by a provision
which in a definition for the purposes of another section of the Constitution
merely omits to mention sex? I know of no principle of construction in law
which says that a fundamental right conferred by the Constitution on an
individual can be circumscribed by a definition in another section for the
purposes of that other section. Giving the matter the most generous
interpretation that I can muster, I find it surprising that such a limitation
could be made, especially where the manner of limitation claimed is the
omission of a word in the definition of that other section which is valid
only for that section. What the legal position, however, is, is not that the
Courts should give the matter a generous interpretation but that they should
regard limitations to fundamental rights and freedoms strictly. |
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If one comes imploring the Court for a declaration that his or her right
under section 3 of the Constitution has been infringed on the ground that, as
a male or female, unequal protection of the law has been accorded to him or
her as compared to members of the other gender, the Court cannot drive that
person |
[END OF PAGE 140]
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away empty-handed with the answer that a definition in section 15 of the
Constitution does not mention sex so her right conferred under section 3 has
not been infringed. How can the right to equal protection of the law under
section 3 be amended or qualified by an omission in a definition for the
purposes of section 15? We are told that the answer lies in an application of
the rule of construction expressio unius exclusio alterius. |
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Before testing the validity of that maxim in this case, I think we should
examine further the manner m which limitations on the fundamental rights and
freedoms of Chapter II of the Constitution are set out in the Constitution
itself. A number of sections in the Chapter make exceptions or place
limitations on the rights and freedoms conferred. A close reading of the
provisions of the Chapter discloses that whenever a provision wishes to state
an exception or limitation to a described right or freedom, it does so
expressly in a form which is bold and clear. In some cases the form of words
used occurs so frequently that it can even be characterised as a formula. In
section 4(2) the protection of the right to life is limited by: |
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4. (2) A person shall not be regarded as having been deprived of his life
in contravention to subsection (1) of this section if he dies as a result of
the use, to such extent and in such circumstances as are permitted by law, of
such force as is reasonable justified- |
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(a) for the defense of any person from violence or for the defense of
property... |
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In section 6(3) the protection from slavery, servitude and forced labor is
limited by: |
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6. (3) For the proposes of this section, the expression `forced labour'
does not include- |
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(a) any labour required in consequence of the sentence or order of this
court. |
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In section 7(2) the protection from inhuman treatment is limited by: |
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7. (2) "Nothing contained in or done under the authority of any law shall
be held to be inconsistent with or in contravention of this section to the
extent that the law iii question authorizes the infliction of any description
of punishment that was unlawful in the former Protectorate of Bechuanaland
immediately before the coming into operation of this Constitution. |
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The expression "Nothing contained in or done under the authority of
any law snarl be held to be inconsistent with or in contravention... of this
section to the extent that the law "authorizes" or "makes
provision for", in particular, is often used to create the required
exceptions. It is again used in section 8(5) with respect to the protection
from deprivation of property; in section 9(2), with respect to the
limitations on the protection for privacy of home and other property; in
section 10 (12), with respect to limitations to the provisions to secure
protection of law; m section 11(5) with respect to limitations on the
protection of freedom of conscience; in section 12 (2) with respect to
limitations on the protection of freedom of expression; in section 13(2),
with respect to the limitation to the protection of freedom of assembly and
associa- |
[END OF PAGE 141]
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tion; and in section 14 (3) with respect to the limitation on the
protection of freedom of movement. Section 16(1) which gives a general and
comprehensive power to derogate from fundamental rights and freedoms in time
of war or where a state of emergency has been declared under section 17 uses
a variation of the formula. |
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Even section 15 follows that pattern. As we have seen, subsection (1)
proscribes laws which make any provision which is discriminatory either of
itself or in its effect, and subsection (2) proscribes discriminatory
treatment in actions under any law or public office of authority. Then
subsection (4) places the limitations on that proscription. It opens by
saying, "Subsection ( I ) of this section shall not apply to any law so
far as that law makes provision - " and proceeds to itemise the
provisions which are exempted from the application of subsections 15(I) and
(2). Then in subsection (5) a limitation is placed on the protection from
discrimination with respect to qualifications for service as a public officer
etc. by the use of what has been described before as the formula,
"Nothing contained in any law shall be held to be inconsistent with or
in contravention of subsection (1) of this section..." And in subsection
(9), where savings are made from the protection with respect to laws in force
immediately before the coming into force of the Constitution or to written
laws repealed and re-enacted, a variation of the same formula is used. |
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If the makers of the Constitution had intended that equal treatment of
males and females be excepted from the application of subsections IS(I) or
(2), I feel confident, after the examination of these provisions, that they
would have adopted one of the express exclusion forms of words that they had
used in this very same section and in the sister sections referred to. I
would expect that, just as section 3 boldly states that every person is
entitled to the protection of the law irrespective of sex, in other words
giving a guarantee of equal protection, section IS in some part would also
say, again equally expressly, that for the purposes of maintaining the
patrilineal structure of the society, or for whatever reason the framers of
the Constitution thought necessary, discriminatory laws or treatment may be
passed for or meted to men and women. Nowhere in the Constitution is this
done. Nowhere is it mentioned that its objective is the preservation of the
patrilineal structure of society. But I am left to surmise that the
Constitution intended sex-based legislation by the omission of the word
"sex" from section 15(3) and that the reason for the word's
omission was to preserve the patrilineal structure of the society. I find it
a startling proposition. If that were so, is it not extraordinary that equal
protection is conferred irrespective of sex at all by section 3? What is even
more serious is that section 15 would then, under subsection (I), permit not
only the making of laws which are discriminatory on the basis of sex, but
under subsection (2) it would permit the treatment of people in a
discriminatory manner by "any person acting by virtue of any written law
or in the performance of the functions of any public office or any public
authority." Does this mean that differential treatment is permissible
under the Constitution by any person in the performance of any public office
or any public authority depending on whether the person being dealt with is a
man or a woman? That interpretation boggles the mind. |
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Faced with the remarkable consistency in the manner in which the
Constitution makes exceptions to or places limitations on the protections
that it grants, |
[END OF PAGE 142]
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I have the greatest difficulty in accepting that the Constitution chose
only the all important question of sex discrimination to make its desired
exception by omission in a definition. Why did the framers of the
Constitution choose, in this most crucial issue of sex-based discrimination,
required to preserve the male orientation of traditional society, to leave
the matter to this method? Why did they make the discovery of their intention
on this vital question dependent on an aid to construction, an aid which is
not conclusive in its application, when in other cases desired exclusions had
been so boldly and expressly stated? I can find no satisfactory answers to
these questions. My difficulty is further compounded when I consider that
this omission in the definition is expected not only to exclude
"sex" from a protection conferred in section 15 but also to
actually limit or qualify a. right expressly conferred by section 3, the
basic and umbrella provision for the protection of fundamental rights and
freedoms under the Constitution. |
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The application of the expressio unius principle to statutory
interpretation in Botswana, which has to compete for supremacy in this case
with conclusions derived from the positive internal evidence of the Constitution
itself as to how it makes exceptions when desired, is, according to the
argument of the appellant, provided for by section 33 of the Interpretation
Act [Cap. 01:04 which states that: |
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33. Where enactment qualifies a general expression by providing that it
shall include a number of particular matters or things, any matter or thing
which is not expressly included is by implication excluded from the meaning
of the general expression. |
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It is true that "sex" is omitted from the categories mentioned
in the definition in section 15(3) of the Constitution. But even if that
definition through the omission qualifies any general expression found in
that subsection, it appears to me that it does not qualify any general
expression in section 3, which is the section under which the respondent
complained. Nevertheless, as the appellant submits that the respondent could
challenge the provisions of the Citizenship Act, if at all, only on the
ground that her rights under section IS of the Constitution have been
contravened, the expressio unius principle calls for examination. In
any event, section 24(2) of the Interpretation Act admits all aids to the
construction of an enactment in dispute when it provides that: |
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24. (2) The aids to construction referred to in this section [i.e. those.
dealing with what material could be used by a Court as an aid to
construction] are in addition to any other accepted aid. |
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The occasions on which the expressio unius principle applies are
summarised in Bennion on Statutory Interpretation at page 844 as: |
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"...it is applied where a statutory proposition might have covered a
number of matters but in fact mentions only some of them. Unless these are
mentioned merely as examples, or ex abundanti cautela, or for some
other sufficient reason, the rest are taken to be excluded from the
proposition... [it] is also applied where a formula which in itself may or
may not include a certain class is accompanied by words of extension naming
only some members of that class. The remaining members of the |
[END OF PAGE 143]
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class are then taken to be excluded. Again the principle may apply where
an item is mentioned in relation to one matter but not in relation to another
equally eligible." |
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The competing claims in this case are that the omission was deliberate and
intended to exclude sex-based discrimination, the alternative being that the
omission was neither intentional nor made with the object of excluding sex
based discrimination. I have already shown how exclusions from the
protections in the fundamental rights Chapter of the Constitution have in
other cases been made. The method is wholly against the argument based on the
application of the exclusio unius principle. Further, when the
categories mentioned in section 3 and 15(3) of the Constitution are compared,
it will be seen that they do not exactly match. Not only is "sex"
omitted from the definition in section 15(3) although it appears in section
3, but "tribe" is added to the definition in section 15(3) so that
it reads "race, tribe, place of origin, political opinions, colour or
creed", although "tribe" does not. appear in section 3. The
appellant explained the addition of "tribe" on the ground that it
was specifically included because of the concern that the framers of the
Constitution had for possible discrimination on that ground. That indicates
that the classes were mentioned in order to highlight some of the vulnerable
groups or classes that might be affected by discriminatory treatment. I find
this conforming more to mention of the class or group being ex abundanti
cautela rather than with the intention to exclude from cover under
section 15 a class upon which rights had been conferred in section 3. Here,
as Bennion points out at page 850, the ruling maxim is abundans cautela
non nocet (abundance of caution does not harm) (see the Canadian case of Docksteader
v. Clark (1903) 11 B.C.R. 37, cited by E.A. Driedger in The
Construction of Statutes). I do not think that the framers of the
Constitution intended to declare in 1966 that all potentially vulnerable
groups or classes who would be affected for all time by discriminatory
treatment have been identified and mentioned in the definition in section
15(3). I do not think that they intended to declare that the categories
mentioned in that definition were forever closed. In the nature of things, as
farsighted people trying to look into the future, they would have
contemplated that with the passage of time not only the groups or classes
which had caused concern at the time of writing the Constitution but other
groups or classes needing protection would arise. The categories might grow
or change. In that sense, the classes or groups itemised in the definition
would be, and in my opinion, are by way of example of what the framers of the
Constitution thought worth mentioning as potentially some of the most likely
areas of possible discrimination. |
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I am fortified in this view by the fact that other classes or groups with
respect to which discrimination would be unjust and inhuman and which,
therefore, should have been included in the definition were not. A typical
example is the disabled. Discrimination wholly or mainly attributable to them
as a group as such would, in my view, offend as much against section 15 as
discrimination against any group or class. Discrimination based wholly or
mainly on language or geographical divisions within |
[END OF PAGE 144]
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noticed, that although the definition mentions "race" and
"tribe", it does not mention "community", yet the
limitation placed on subsection 15(1) by subsection 15(4) refers to "a
particular race, community or tribe." All these lead me to the
conclusion that the words included in the definition are more by way of
example than as an exclusive itemisation. The main thrust of that definition
in section IS(3) is that discrimination means affording different treatment
to different persons wholly or mainly attributable to their respective
characteristic groups. Then, of course, section 15(4) comes in to state the
exceptions when such differential treatment is acceptable under the
Constitution. I am, therefore, in agreement with the learned judge a quo when
he says that the classes or groups mentioned in section 15(3) are by way of
example. |
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On the basis of the appellant's argument, the legislature relying on the
omission of "sex" in section 15(3), could, for example legislate
that the women of |
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Fundamental rights are conferred on individuals by constitutions not on
the basis of the track records of governments of a state. If that were the
criterion, fundamental rights need not he put in the constitution of a state
which is known for the benevolent actions of its government. In any event, if
the constitution is the basic or founding document of a particular state,
that state would have no track record for anyone to go by. In the best of all
possible worlds, entrenchment of fundamental rights in a constitution should
not be necessary. All that these rights require in such a state would be
accorded as a matter of course by the government. Fundamental rights are
conferred on the basis that, irrespective of the government's nature or
predilections, the individual should be able to assert his rights and
freedoms without reliance on its goodwill or courtesy. It is protection
against possible tyranny, oppression or deprivations of those self same
rights. A fundamental right or freedom once conferred by the constitution can
only be taken away or circumscribed by an express and unambiguous statement
in that constitution or by a valid amendment of it. It cannot be taken away
or circumscribed by inference. It is for these reasons that I find it
difficult to accept the argument of the appellant which asks us to |
[END OF PAGE 145]
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infer from the omission of the word "sex" in the
definition of discrimination in section 15(3) that the right to equal
protection of the law given in section 3 of the Constitution to
all persons has, in the case of sex-based differentiation in equality
of treatment, been taken away. |
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Questions as to whether every act of differentiation between classes or
groups amounts to discrimination and what categories of persons are protected
under section 15 may arise. If the categories of groups or classes
mentioned in section 15(3) are but examples, where does one draw the line so
as to the categories to be included. ofcourse, treatment to different sexes
based on biological differences cannot be taken as discrimination in the
sense that section IS(3) proscribes. With regard to the classes which are
protected, it would be wrong to lay down any hard and fast rules. The
vulnerable classes identified in sections 3 and 15 are well known. I would
add that not only the classes mentioned in the definition in section I 5(3),
but, for example, the class also mentioned in subsection 4(d), where it
speaks of "community" in addition to "race" and
"tribe" have to be taken as vulnerable. Civilised society requires
that different treatment should not be given to people wholly or mainly on
the ground of membership of the designated classes or groups. But as has been
shown with respect to race and gender based discrimination the development of
thought and conduct on these matters may take years. One feels a sense of
outrage that there was a time when a Chief Justice of the |
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"The question then arises, whether the provisions of the
Constitution, in relation to personal rights and privileges to which the
citizen of a state should be entitled, embraced the negro African race, at
that time in this country... In the opinion of the court the legislation and
histories of the times, and the language used in the Declaration of
Independence, show, that neither the class of persons who had been imported
as slaves, nor their descendants, whether they had become free or not, were
then acknowledged as part of the people, nor intended to be included in the
general words used in that instrument... They had for more than a century
before been regarded as beings of an inferior order; and altogether unfit to
associate with the white race, either in social or political relations; and
so far inferior, that they had no rights which the white man was bound to
respect; and that the negro might justly and lawfully be reduced to slavery
for his benefit..- This opinion was at that time fixed and universal in the
civilised portion of the white race. It was regarded as an axiom in morals as
well as in politics, which no one thought of disputing, or .supposed to be
open to dispute; and men in every grade and position in society daily and
habitually acted upon it in their private pursuits, as well as in matters of
public concern, without doubting for a moment the correctness of this
opinion." |
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Today, it is universally accepted that discrimination on the ground of
race is an evil. It is within the memory of men still living today in some
countries that women were without a vote and could not acquire degrees from
institutions of higher learning, and were otherwise discriminated against in
a number of ways. Yet today the comity of nations speaks clearly against
discrimination against women. Changes occur. The only general criterion which
could be put for- |
[END OF PAGE 146]
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ward to identify the classes or groups is what to the right thinking man
is outrageous treatment only or mainly because of membership of that class or
group and what the comity of nations has come to adopt as unacceptable
behavior. |
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One point was taken by the appellant in his grounds of appeal but not
developed further by him before us. That is the argument that in section
IS(4)(c) of the Constitution there is an exclusion from the provisions of
subsection (1) "with respect to adoption, marriage, divorce, burial,
devolution of property on death or other matters of personal law", and
that an exclusion with regard to the law of citizenship is an exclusion which
qualifies under "other matters of personal law." I raise this point
here only to show that it has not been over the that in my view it is not
valid. In the first place, as stated in connection with the argument which
prayed in aid the provisions of section 15(4)(3), the underlying argument
that on the basis of the omnibus clause in section 15(4)(c) discriminatory
laws on citizenship could be made on the basis of sex is defeated by the fact
that section 15 as a whole does not deal with discrimination on the basis of
sex at all. Proceeding from that general exclusion to exclude further from the
section discrimination in citizenship cases on the ground of sex seems to me
to be excluding sex-based discrimination from a provision which does not in
any case apply. That cannot achieve the desired object. On the other hand,
there is a sense in which the expression "personal law" may be used
to describe the aggregate of elements affecting the legal status of a person.
That would be the case, for example, when one is considering matters of
personal law as opposed to the law of things. But it does not seem to me to
be the use made of that expression here. The more common meaning of personal
law is the system of law which applies to a person and his transactions
determined by the law of his tribe, religious group, case, or other personal
factor, as distinct from the territorial law of the country to which he
belongs, in which he finds himself, or in which the transaction takes
place. ( |
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The point was also mentioned, though not developed, that the provisions of
the Citizenship Act questioned were re-enactments of previously existing
legislation and, therefore, were saved from challenge by section 15(9)(b)
which states that: |
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"15.(9) Nothing contained in or done under authority of any be held
to be inconsistent with the provisions of this section - |
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(b) to the extent that the law repeals and re-enacts any provision which
has been contained in any written law at all times since immediately before
the coming into operation of this Constitution." |
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Serious examination of this provision shows that it clearly does not apply
to the situation in this case. It would apply if sections 4 and 5 of the
Citizenship Act had existed as laws before the Constitution had come into
effect. We know they did not. Even sections 21 and 22 of the Constitution
which they were intended to replace were not in existence as laws prior to
the coming into operation of the Constitution. But above all, I think that
section 15(9)(b) applies only when a written law is in existence before the
Constitution, and therefore, one which is protected whatever its terms by
section 15(9) if it continues after the Constitution, is repealed and
re-enacted exactly or at least substantially in the same form as before. By
this test, the provisions of section 4 and 5 would not qualify, even if they
had replaced some written law in existence before the Constitution. They were
not exactly the same or even substantially the same as the provisions before. |
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The point was rightly taken that if discrimination on the basis of sex was
disallowed by the Constitution, the Constitution itself proceeded to break
its prescription by providing in the original form, after section 21 which
dealt with births within Botswana in terms which were gender-neutral, section
22 which provided that: |
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22. A person born outside |
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Obviously, the Constitution there treated children of |
[END OF PAGE 148]
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Incidentally, it would be noticed from the original constitutional
provisions on citizenship that no distinction was drawn between descent
through the male or female line in the case of persons born within the
jurisdiction. If the framers had intended that a distinction in citizenship
be made dependent on the nationality of the father in order to preserve the
male orientation of |
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" 21. Every person born in |
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The only exclusions from that provision dealt with the children of diplomats
accredited to |
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The learned judge a quo referred to the international obligations
of |
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I agree that the meaning of the questioned provisions of the Citizenship
Act is clear. But from the strenuous efforts that the appellant has made in
justification of his interpretation of section 15(3) of the Constitution his
claim that the meaning of that subsection is clear seems more doubtful. The
problem before us is one of discrimination on the basis of sex under the
Constitution. Why, one may ask, do sections 3 and 15 of the Constitution
apparently say different |
[END OF PAGE 149]
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things? It is the provisions of the Constitution itself which give rise to
the difficulty of the interpretation, if any; not the Citizenship Act. What
we have to look at when trying to determine the intentions of the framers of
the Constitution, is the ethos, the environment, which the framers thought
Botswana was entering into by its acquisition of statehood, and what, if
anything, can be found likely to have contributed to the formulation of their
intentions in the Constitution that they made. |
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"... |
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The comity of civilised nations was the international society into which |
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"Here, however, we are concerned with a constitution, brought in force
certainly by Act of Parliament, the Bermudian Constitution Act of 1967 of the
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The antecedents of the Constitution of Botswana with regard to the
imperatives of the international community could not have been any different
from the antecedents found by Lord Wilberforce in the case of |
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"Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex, |
[END OF PAGE 150]
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language, religion, political or other opinion, national or social origin,
property, birth or other status." |
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The British Government must have subscribed to this Declaration on behalf
of itself and all dependent territories, including |
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Article 2 of the African Charter on Human and People's Rights provides
that: |
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"Every individual shall be entitled to the enjoyment of the rights
and freedoms recognized and guaranteed in the present Charter without distinction
of any kind such as race, ethnic group, colour, sex, language, religion,
political or any other opinion, national and social origin, fortune, birth or
other status." |
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Then paragraphs 1 and 2 of Article 12 state that: |
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"l. Every individual shall have the right to freedom of movement and
residence within the borders of a State provided he abides by the law. |
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2. Every individual shall have the right to leave any country including
his own, and return to his country. This right may only be subject to
restriction, provided for by law for the protection of national security, law
and order, public health and morality." |
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find myself at a loss to understand the complaint made against their use
in that manner in the interpretation of what no doubt are some difficult
provisions of the Constitution. The reference made by the learned judge a quo
to these materials amounted to nothing more than that. What he had said
was: |
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"I am strengthened in my view by the fact that |
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That does not seem to me to be saying that the O.A.U. Convention, or by
its proper name the African Charter of Human and Peoples Rights is binding
within |
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tional obligations. Indeed, my brother Aguda J.A. referred in his
judgement at page 37 to the Charter and other international conventions in a
similar light in the Petrus Case. I am in agreement that |
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I now come to the submission on locus standi. I have left the point
until the end because like the appellant who himself admitted in his
submissions that, "This is a case where in view of the `circularity' of
some of the arguments, it may be necessary for the Court to consider the
merits before coming to a conclusion on the locus standi," I feel
that it could not have been determined without first going into the merits.
With respect to the point, the appellant argued that the Court a quo erred
in holding that the respondent had locus standi to ask it to pass on
either section 4 or 5 of the Citizenship Act. The respondent, it was
submitted, is a practising lawyer, who on marrying on 7th March 1984, freely
married into an existing citizenship regime carrying with it all the
consequences referred to by the judge a quo, namely, that not only her
husband but her children by the marriage were liable to be expelled from
Botswana, and that if her husband were to decide to leave both Botswana and
herself, the children, assuming that they were left behind, could only
continue to live in Botswana if granted residence permits. She was, went on
the argument, at the time of marriage exercising her right to liberty, and
could not now be heard to complain of a consequence which she had consciously
invited. Nor could she rely on the choice she freely made as an infringement
of her rights which should confer jurisdiction under section 18 of the
Constitution. In any event, the appellant argued, there was no threat or
likelihood of it alleged by the respondent of expulsion of her husband, who
had been in Botswana for fifteen years or more years, and potential adverse
consequences of a speculative nature was not sufficient to confer locus
standi under section 18. Section 5 of the Citizenship Act, the appellant
argued had no relevance at all to the respondent; the argument advanced that
she was still of child-bearing age and might choose to have another child
outside |
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I do not think a person should be prejudiced in the enjoyment of his or
her constitutional rights just because that person is a lawyer. |
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On the locus point, the appellant further argued that the popularis
actio of Roman law, which gave an individual a right of action in matters
of public interest was not a part of Roman-Dutch common law. The principle of
our law being that a private individual must sue on his own behalf; the right
he sought to enforce must be available to him personally, or the injury for
which he or |
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she claimed redress must be sustained or apprehended by himself. The cases
of Darymple v. Colonial Treasurer 1910 TS 372; Director of
Education, TVL v. MacCagie and other 1918 AD AT 621; Veravia v.
President of S.A. Medical and Dental Council 1985 (2) TDP at 315; and Cabinet
of the Transitional Government of SWA v. Eins 1988 (3) S.A.AD at p.369
were cited as authorities to show that section 18 of the Constitution
reflected this principle when it provided that the wrong (i.e. the actual
threatened contravention of the relevant sections) must be in relation to the
applicant. But the point made by those authorities has been distinguished in
cases affecting the liberty of the subject by the South African Appellate
Division in Wood and Others v. Odartgwa Tribal Authority and Another [
1975 (2)] A.D. 294 at page 310 where Rumpff C.J., after analysing the
proposition that the actio popularis did not apply in Roman-Dutch law,
said: |
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"Nevertheless, I think it follows from what I have said above, that
although the actiones populares generally have become obsolete in the
sense that a person is not entitled `to protect the rights of the public', or
`champion the cause of the people' it does not mean that when the liberty of
a person is at stake, the interest of the person who applies for the
interdict de libero homine exhibendo should be narrowly construed
because illegal deprivation of liberty is a threat to the very foundation of
a society based on law and order." |
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I need not, however, go into these cases in detail. Section 18 speaks for
itself. I have recited the relevant provisions in subsection (1) earlier on
in this judgement. It says that "if any person alleges that any of the
provisions of section 3 to 16 (inclusive) of this Constitution has been, is
being or is likely to be contravened in relation to him" that person may
apply to the High Court for redress. The section shows that the applicant
must "allege" that one of the named sections of the Constitution
has been, is being or is likely to be infringed in respect of him. He must
therefore sue only for acts or threats to himself But the section does not
say that the applicant must establish as a matter of proof that any of these
things has or is likely to happen to him. The meaning of "allege"
is "declare to be the case, especially without proof' or "advance
as an argument or excuse" (see Concise Oxford Dictionary 8th
edition 1990). I believe that in the context of section 18(1), it is the
earlier of the two meanings that the word has. Of course the allegation to
enable the applicant to seek the aid of the courts must not be frivolous or
without some foundation. But that is not the same thing as a requirement to
establish positively. In my opinion, we here see an example of a case where
constitutional rights should not be whittled down by principles derived from
the common law, whether Roman-Dutch, English or |
[END OF PAGE
153]
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nection I refer to a parallel situation in the case of Craig v. Borer
cited earlier in which the United States Supreme Court at page 194 et seq.
demonstrated. on the point of locus to bring a constitutional challenge on
the ground of discrimination, that persons not directly affected within the
class discriminated against could bring the action if they could show that
they were or could be adversely affected by the application of the law. In
that case, the question was whether a law prohibiting the sale of
"non-intoxicating" 3.13% beer to males under the age of 21 and to
females under the age of 18 constituted gender based discrimination that
denied males between 18 and 20 years of age the equal protection of the laws.
The Court held that a licensed vendor of the beer had standing to challenge
the law. |
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Did the applicant allege that her constitutional right had been, was being,
or was likely to be infringed? That question I now proceed to answer in the
case of the respondent. We recall from the paragraphs of her founding
affidavit which are recited in the earlier part of this judgement that after
setting out what she believed to be the constitutional provisions which had
been infringed, she continued in paragraph 19 thereof to state that as set
out above she verily believed that "the provisions of section 3 of the
Constitution had been contravened in relation to myself." I do not think
that the allegation could be clearer. |
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Has that allegation some basis of truth? No doubt due to a mixture of some
adventitious claims made by her with respect to her husband, who is without
doubt an alien and could under the Constitution be placed under some
disabilities, her case seems to have been misunderstood. It was, for example,
argued by the appellant that the Citizenship Act laid down how citizenship
should be acquired and taken away, and therefore, for a person to attack the
Act he or she must be shown to be a person who did not enjoy the rights of
citizenship, not one like respondent who was enjoying full rights of
citizenship. In this case, the respondent's children might, according to the
argument, have been affected by the Citizenship Act, not herself. But the
Citizenship Act, although defining who should be a citizen, has consequences
which affect a person's right to come into, live in and go out of this
country, when he likes. Such consequences may primarily affect the person
declared not to be a citizen. But there could be circumstances where such
consequences would extend to others. In such circumstances, the courts are
not entitled to look at life in a compartmentalised form, with the
misfortunes and disabilities of one always kept separate and sanitised from
the misfortunes and disabilities of others. |
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The case which I understand the respondent to make is that due to the
disabilities under which her children were likely to be placed in her own
country of birth by the provisions of the Citizenship Act, her own freedom of
movement protected by section 14 of the Constitution was correspondingly
likely to be infringed and that gave her the right under section 18 (1) to
come to court to test the validity of the Act. What she says is that it is
her freedom which has been circumscribed by the disabilities placed on her
children. If there is any substance to this allegation, the courts ought to
hear her. The argument that a mother's relationship to her children is
entirely emotional and that an emotional feeling cannot found a legal right
does not sound right to me. Nor am I impressed by the argument that a mother
has no responsibility towards a child |
[END OF PAGE 154]
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because it is only the guardian who has a responsibility recognised by
law, and in |
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"5. (1) No person shall he deprived of his personal liberty save as
may be authorised by law in any of the following cases, that is to say - |
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(f) under order of the court or with the consent of his parent or
guardian, for his education or welfare during any period ending not later
than the date when he attains the age of 18 years;" |
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This provision assumes that before the child is 18 years of age, the
parent, a term which we all must agree includes a mother, also has some
responsibility towards the child's education and welfare. In any case, he or
she can control what happens to the child. During that period, especially at
the younger end of the infant's life-span, the parents', especially the
mother's, movements are to a large extent determined by the child's. At about
this same time, the welfare of a child in a broken home is generally
considered better protected in the custody of the mother than that of the
father. It is totally unrealistic to think that you could permanently keep
the child out of |
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But, then, the argument goes, the respondent has not shown that there was
any likelihood of her non-Botswana children being kept out of |
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The appellant also put in an affidavit made by the Immigration Officers at
the |
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tion of the incident referred to by the respondent. Then she proceeded to
state the normal procedure followed by person's arriving at the Airport. She
said: |
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"When passengers arrive at |
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4. If there is a query then the passport holder is given a red card to
present at the Immigration checkpoint, where further inquiries are made and
the problem is sorted out. Where a returning resident does not have a valid
residence permit or visitor's permit endorsed in his passport then one of two
things will happen. |
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either |
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(a) a Form 7 is served upon the visitor, requiring him to appear before an
Immigration Officer at a given time for examination as to whether he is
entitled to remain in |
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or |
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(b) his passport is endorsed for a short period to enable him to
regularize his stay in |
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5. The latter is what appears to have happened to Mr. Dow and his noncitizen
children, as it appears that his passport did not reflect a valid Residence
Permit or Visitor's Permit at that time. The record of his entry is not,
however, available as this was over twelve months ago." |
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"4. According to the file Mr. Dow arrived in |
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On 16th July, 1990 Mr. Dow submitted an application for a
Residence Permit for himself and his two younger children. While his
application |
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was being processed, he continued his studies on the basis of three month
waivers, which is standard procedure in a case such as this. This was the
situation during December 1990/January 1991. |
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6. Mr. Dow's application was duly approved by the Immigration Selection
Board on 17th April 1991. After preparation of the Permit, this was
despatched to the dean of Students, |
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7. On 8th January 1992, at his request, a replacement Permit was issued to
Mr. Dow, including the two children and valid 17th April 1991 to 30th June
1992, when his course was to expire." |
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I do not think comment on the disturbing experiences of a mother who finds
different and unfavorable treatment as to residence meted by authority to
some of her three children in comparison to others who arc accorded
completely opposite treatment by the same authority. Whether or not the
authorities think that eventually the required permission sought by the
disadvantaged children will be given, during her wait she must go through a
period of uncertainty, anxiety and mental agony. In this case it seems that
for some time, at least, two of the respondent's three children had no more
than three months granted each time for their stay in |
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The respondent, in my view, substantiated her allegation that the
Citizenship Act circumscribes her freedom of movement given by section 14 of
the Constitution. She has made a case that as a mother her movements are
determined by what happens to her children. If her children are liable to he
barred from entry into or thrown out of her own native country as aliens, her
right to live in |
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The appellant has argued that even if the respondent had locus standi with
respect to a challenge to section 4 of the Citizenship Act, she certainly did
not have locus with respect to section 5, as the situation which that section
provides for, namely, the citizenship of children born outside Botswana, does
not apply to the respondent in any of the cases of her children. The
possibility of the respondent giving birth at some future date to children
abroad was too remote to form a basis for a challenge to section S. With this
submission I agree. But I must point out that the objections to section 4 may
well apply to section 5. I, however, make no final judgement on that. |
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The appellant has argued that because of the manner in which the repeal
and re-enactment of the laws on citizenship was done, declaring that section
4 was unconstitutional would create a vacuum. On that I would like to adopt
the words of Centlivres CJ in the case Harris and Others v. Minister of
Interior and Another 1952 (2) A.D. at page 456 where he says: |
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"The Court in declaring that such a Statute is invalid is exercising a
duty which it owes to persons whose rights are entrenched by Statute; its
duty is simply 'to declare and apply the law and it would be inaccurate to
say that the Court in discharging that is controlling the Legislature.
Bryce's American Constitution (3rd ed., Vol 1 p.582). It is hardly
necessary to add that Courts of law are not concerned with the question
whether an Act of Parliament is reasonable politic or impolitic. Swam N.
0. and Nicol N. O. v. de Kock and Garner and Others 1951 (3) S.A. 589 at
p.606 (A.D.)." |
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I expect if there is indeed a vacuum, Parliament would advise itself as to
how to meet the situation. |
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The upshot of this discourse is that in my judgement the Court a quo was
right in holding that section 4 of the Citizenship Act infringes the
fundamental rights and freedoms of the respondent conferred by section 3 (on
fundamental rights and freedoms of the individual), 14 (on protection of
freedom of movement) and 15 (on protection from discrimination) of the
Constitution. The respondent has, however, not given a satisfactory basis for
locus standi with respect to section 5 of the Act. And I therefore
make no pronouncement in that regard. The learned judge a quo in the
course of his judgement accepted the argument of counsel for the respondent
that sections 4 and 5 of the Act denied the respondent protection from
subjection to degrading treatment. I do not think it necessary to go into
that question for the purpose of that decision. The declaration of the Court a
quo that sections 4 and 5 of the Citizenship Act Cap 01:01 are ultra
vires the Constitution, is, accordingly, varied by deleting the reference
to section S. Otherwise the appeal is dismissed. |
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It remains for me to thank counsel for the very able and painstaking
manner in which they have researched and presented their cases. I think here
I speak for all my bothers if I say that we have indeed profited from, and
enjoyed the manner of presentation of, their arguments. |
[END OF PAGE 158]
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Aguda, Judge of Appeal. |
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Introduction |
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I have had the privilege of reading in draft the Judgement of the Judge
President just delivered, and I agree with the conclusions reached in that
Judgement together with the reasons upon which he based the conclusions. I
also agree on the Orders made. However, because of the importance to which
this case is entitled, I feel constrained to add my own words to those of the
Judge President not merely to lend support to his powerful words for which in
my view, no further support is needed, but merely to expatiate upon certain
aspects of the matter about which I feel I should express some opinion. |
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The Facts |
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All the relevant facts of this case have already been set down by the
Learned Judge President, and I therefore do not feel obliged to repeat those
facts, save those of them that will make this judgement intelligible and to
make my views as clear as I possibly can. |
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The original application by the applicant at the High Court on June 22
1990, was for an order declaring certain Sections of the Citizenship Act of
1984, namely Sections 4 and 5 ultra vires the Constitution of
Botswana. In support of the application the Respondent, an Advocate in
practice before this Court, swore to an affidavit containing 22 paragraphs.
All the facts deposed to in that affidavit stand unchallenged, and in law
this Court is bound to accept them as established save those which may be
obviously untrue; but I have not discovered any such. |
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On March 7, 1984, the Respondent was lawfully married to a |
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The Legal Issues in Dispute between the Parties |
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It would appear that in her original application the applicant has sought
9 Orders namely: |
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1. declaring Section 4 of the Citizenship Act ultra vires Section 3 of the
Constitution; |
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2. declaring Section 5 of the Act ultra vires Section 3 of the
Constitution; |
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[END OF PAGE 159]
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3. declaring Section 13 of the Act ultra vires Section 3 of the
Constitution; |
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4. ordering and directing that Sections 4 and 5 of the Act he general
neutral; |
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5. ordering and directing that Section 13 of the Act be gender neutral; |
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6. declaring Sections 4, and 5 and 13 of the Act ultra vires
Section 7 of the Constitution; |
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7. declaring Sections 4, 5 and 13 of the Act ultra vires Section 14
of the Constitution; |
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8. declaring the two younger children |
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9. declaring the applicant's spouse to be entitled to make an application
for naturalisation. |
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However, as I understand it, the suit was fought almost entirely on the
allegation that Sections 4 and 5 of the Citizenship Act are ultra vires
Section 3 of the Constitution and secondarily that they are also ultra vires
Section 7 and 14 of the Constitution. As there are no allegations of facts in
the founding affidavit which relate or can remotely be made to relate to
Section 5 of the Act, I take the view that to the extent that the
order made by the Court below relates to that Section, that Order cannot be
allowed to remain and must therefore be set aside. |
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Now the relevant provision of Section 4 of the Act says: |
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"(a ) A person born in |
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(a) his father was a citizen of |
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(b) in the case of the person born out of wedlock, his mother was a
citizen of |
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The case of the Respondent is that this provision is a breach of her
fundamental rights as it specifically makes provision which is discriminatory
in nature on the ground that whilst a male |
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The history of the Citizenship Act has been well set out in the judgement of
the Judge President and I need not repeat it here save to say that what I
would concern myself with is the Act No. 17 of 1984, now Cap. 01:01 in
respect of which this action was brought. Now Section 3 of the Constitution
says: |
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"whereas every person in Botswana is entitled to the fundamental
rights and freedoms of the individual, that is to say, the right, whatever
his race place of origin, political opinions, colour, creed or sex, but
subject to the rights and freedoms of others and for the public interest to
each and all of the following, namely: |
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(a) life, liberty, security of the person and the protection of the law; |
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[END OF PAGE 160]
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(b)... |
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(c)... |
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the provisions of this Chapter shall have effect for the purpose of
affording protection to those rights and freedoms subject to such limitations
of that protection as contained in those provisions, being limitations
designed to ensure that the enjoyment of the said rights and freedoms by any
individual does not prejudice the rights and freedoms of others or the public
interest." |
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The Constitution then goes on in Section 4 to 15 to make provisions as
regards the protection of certain specific rights and certain derogations
from each of the protected rights. |
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Shorn of all frills the case of the Appellant is that Section 4 of the Act
is infra vires the Constitution, since the Constitution by itself in Section
15 permits the enhancement of legislation which by itself is discriminatory
on grounds of sex. Appellant also argues that the Respondent has no locus
standi to have brought the action. I shall defer my consideration on this
point to a latter part of this judgement. For now I would like to point out
that Section 15 provides (inter alia) that: |
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"(1) Subject to the provisions of sub-sections (4), (5) and (7) of
this Section, no law shall make any provision that is discriminatory either
of itself or in its effect. |
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(2)... |
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(3) In this Section, the expression "discriminatory" means
affording different treatment to different persons, attributable wholly or
mainly to their respective descriptions by race, tribe, place of origin,
political opinions, colour or creed whereby persons of one such description
are subjected to disabilities or restrictions to which persons of another
description are not made subject or are accorded privileges or advantages
which are not accorded to persons of another such description." |
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The Appellant's Argument |
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Mr Kirby, Deputy Attorney-General argues with all the force at his command
as follows. Since the word "sex" is omitted from Section 15 of the
Constitution, then it would be permissible to enact any laws which is
discriminatory on the grounds of sex. After all, he argues, Parliament has
the power and indeed the right under Section 86, to legislate for the
country, and there is no limit to that power provided that such legislation
is "for the peace, order and good government of |
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"The aim and effect of the Sections (i.e. 4 and 5) is not to
disadvantage any person but rather to seek to provide certainty of
citizenship, and |
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[END OF PAGE 161]
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achieving the practical objective that a child should acquire initially
the citizenship of his guardian (whatever his sex) whose domicile he also
acquires.' |
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Finally on this point the Learned Deputy-General says that: |
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"Even if it be held that Sections 4 and -5 of the act discriminate
against women, the law is, it is submitted, having regard to its nature...
reasonably justifiable in a democratic society, so as to render it
exceptionally permissible under S. 15(4) (e)." |
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Application of S.15(4) (e) of the Constitution. |
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I now find it necessary to quote sub-section (4) (e) of Section 15 of the
Constitution under which the Appellant seeks succour. The relevant part of
that sub-section (4) reads as follows: |
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"Subsection (1) of this section shall not apply to any law so far as
the law makes provision: |
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{(a), (b), (c) and (d) are not relevant} |
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(e) whereby persons of any such description as is mentioned in sub-section
(3) of this section may be subjected to any disability or restriction or may
be accorded any privilege or advantage which having regard to its nature and
to special circumstances pertaining to those persons or to persons of any
such description, is reasonably justifiable in a democratic society." |
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The submission of Learned Deputy Attorney-General in respect of the last
mentioned matter can be easily disposed of. He says that discrimination on
grounds of sex does not come within the purview of sub-section (3) of Section
15, because the word "sex" is omitted from the wording of the
sub-section. I find it difficult to understand how he can at the same time
seek succour under sub-section (4) which is only referable to persons of the
description mentioned in sub-section (3). And in any event, legislation
-which in general terms and for general application prescribes discrimination
on grounds of sex cannot, for reasons which will unfold later, be held to be
reasonably justifiable in a democratic society in this age and time. |
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As stated earlier, one of the submissions of the Learned Deputy Attorney-General
is that the aim and effect of Section 4 (with which I am now concerned) is
not to disadvantage any person but rather to seek to provide certainty of
citizenship. With great respect to the Learned Deputy Attorney-General this
argument is not only untenable but rather strange. It is plain and beyond any
controversy, in my view, that the effect of Section 4 of the Act is to accord
an advantage or a privilege to a man which is denied to a woman. The language
of the section is extremely clear and the effect is inconvertible, namely
that whilst the offspring of a Botswana man acquires his citizenship if the
child is born in wedlock such an offspring of a Botswana woman similarly born
does not acquire such citizenship. A more discriminatory provision can hardly
be imagined. |
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The question still remains whether the discrimination on the ground of sex
can be held to be permitted by the Constitution, for, if it is, there is
nothing |
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[END OF PAGE 162]
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this Court can do about it under its adjudicatory powers. Therefore the
question that must now be answered is whether the Constitution of Botswana
either in terms or by intent gives general powers of sex discrimination by
legislation or by executive acts. In coming to a determination of this issue,
we are bound to construe Sections 3 and 15 of the Constitution. |
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Canons of Constitutional Construction |
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At the outset let me say that I have had no reasons to change my mind as
regards the principles to be followed in the construction of the Constitution
which I stated in Petrus & Another v. The State (1984) BLR 14, at
pages 34-35. Here I wish to refer in particular to what Justice White of the
Supreme Court of the United States said in South Dakota v. North Carolina (1904)
192 US 268; 48 LED 448 at p.465 thus: |
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"I take it to be an elementary rule of constitutional construction
that no one provision of the Constitution is to be segregated from all
others, and to be considered alone but that all the provisions bearing upon a
particular subject are to be brought into view to be so interpreted as to
effectuate the greater purpose of the instrument". |
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1 would also wish to refer once again to what Sir Udo Udoma of the Supreme
Court of Nigeria said in Rafiu Rabiu v. The State (1981) 2 NCLR 293,
at p.326 thus: |
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"I do not conceive it to be the duty of this Court so to construe any
of the provisions of the Constitution as to defeat the obvious ends the
Constitution was designed to serve where another construction equally in
accord and consistent with the words and sense of such provisions will serve
to enforce and protect such ends". |
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And in Ifezu v. Mbadugha (1984) 1 SC NLR 427; 5 SC 79, |
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"The fundamental principal is that such interpretation as would serve
the interest of the Constitution and would best carry out its object and
purpose should be preferred. To achieve this goal its relevant provisions
must be read together and not disjointedly... where the provisions of the
Constitution are capable of two meanings the Court must choose the meaning
that would give force and effect to the Constitution and promote its
purpose". |
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To these I would like to add the very important voice of Lord Diplock in Attorney-General
of the Gambia v. Jobe (1985) LRC (Cons.) 556 PC, at p.565 thus: |
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"A Constitution and in particular that part of it which protects and en
trenches fundamental rights and freedoms to which all persons in the State
are to be entitled, is to be given a generous and purposive
construction". |
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Generous construction means in my own understanding, that you must interpret
the provisions of the Constitution in such a way as not to whittle down any
of the rights and freedoms unless by very clear and unambiguous words such
interpretation is compelling. The construction can only be purposive when |
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[END OF PAGE 163]
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it reflects the deeper inspiration and aspiration of the basic concepts
which the Constitution must for ever ensure, in our case the fundamental
rights and freedoms entrenched in Section 3. |
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The Constitution is the Supreme Law of the Land and it is meant to serve
not only this generation but also generations yet unborn. It cannot be
allowed to be a lifeless museum piece; on the other hand the Courts must
continue to breathe life into it from time to time as the occasion may arise
to ensure the healthy growth and development of the State through it. In my
view, the first task of a Court when called upon to construe any of the
provisions of the Constitution is to have a sober and objective appraisal of
the general canvass upon which the details of the Constitutional picture are
painted. It will be doing violence to the Constitution to take a particular
provision and interpret it one way which will destroy or mutilate the whole
basis of the Constitution when by a different construction the beauty,
cohesion, integrity and healthy development of the State through the
Constitution will be maintained. We must not shy away from a basic fact that
whilst a particular construction of a Constitutional provision may be able to
meet the demands of the society of a certain age such construction may not
meet those of a later age. In my view, the over-riding principle must be an
adherence to the general picture presented by the Constitution into which each
individual provision must fit in order to maintain in essential details, the
picture of which the framers could have painted had they been faced with
circumstances of today. To hold otherwise would be to stultify the living
Constitution in its growth. It seems to me that a stultification of the
Constitution must be prevented if this is possible, without doing extreme
violence to the language of the Constitution. I conceive it that the primary
duty of the Judges is to make the Constitution grow and develop in order to
meet the just demands and aspirations of an ever developing society which is
part of the wider and larger human society governed by some acceptable
concepts of human dignity. |
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Status of Customary Law and the Common Law |
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The Learned Deputy Attorney-General did all his possible best to inform
this Court of the rules of customary law and of the common law under which
women are seriously discriminated against and that this provided the
background which informed the enactment of the Act in 1984. This may well be
so, but what we are called upon to do is to consider Section 4 of the Act in
the light of the Constitution and see how that Constitution must be construed
today bearing in mind the changed circumstances of our society. It is clear,
of course, and I have not the slightest doubt on the issue that if any rule
of customary law or of the common law is inconsistent with any of the
provisions of the Constitution, but especially of the entrenched provisions,
such rule of customary law or/and of the common law must be held to have been
abrogated by the provisions of the Constitution to the extent of such
inconsistency. Here I would, with respect, like to make reference to what
Karibi-Whyte, JSC, of the Supreme Court of Nigeria said in Adediran &
Another v. Interland Transport Ltd. (1991) 9 NWLR 155. In that case the
defendant objected to the capacity of the plaintiff in instituting the suit.
The ground of objection was that the subject matter of the suit for a redress
of a public nuisance, the only person |
[END OF PAGE 164]
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competent to institute the action under the applicable English common law
was the Attorney-General, and not the plaintiff. In dismissing this
contention the Learned Justices of the Supreme court said (page 180 of the
Report): |
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"The Constitution has vested the Courts with the powers for the
determination of any question as to the civil rights and obligations between
government or authority and any persons in |
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And Kentridge J.A. made this same point in Attorney-General v. Moaqi 1982
BLR I when he said at page : |
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"Constitutional rights conferred without express limitation should
not be cut down by reading implicit restrictions into them so as to bring
them into line with the common law". |
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Status of Section 3 of the Constitution |
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There was some suggestion that Section 3 of the Constitution is a mere
preamble to the other Sections which follow merely because it begins with the
words "whereas". However, that that cannot be so has been
exhaustively and adequately dealt with by my brother the Learned Judge
President in the Judgement which he has just delivered and I do not feel that
I should traverse the same route again. But I must express, as strongly as I
can, that by no stretch of the imagination can such a basic over-riding
provision of the Constitution be regarded as a mere Preamble and the Learned
Deputy Attorney-General conceded this during argument. There can be no iota
of doubt as regards the status of Section 3, namely, that it is a substantive
provision of the Constitution. This conclusion is very much compelling when
it is noted that the Constitution itself (Section 18) gives power to any
person to institute an action in Court to test if the right entrenched in
Section 3 to 16 has been, is being or is likely to be contravened in relation
to him. |
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At this juncture, I would wish to point out that section 1 of the Constitution
says that |
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[END OF PAGE 165]
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3, seems to me inevitable. The Learned Judge President has dealt so
exhaustively with this matter in his judgement that it will be a futile exercise
on my part were I to attempt to proceed at any further examination of it. |
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The Status of International Treaties, Agreements, Conventions,
Protocols, Resolutions, etc |
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In considering whether this Court can interpret Section 15 of the
Constitution in such a way as to authorise legislation which in its term and
intent meant to discriminate on grounds of sex, in this case, the female sex,
it appears to me that, now more than ever before, the whole world has
realised that discrimination on grounds of sex, like that institution which
was in times gone by permissible both by most religions and the conscience of
men in those times, namely slavery, can no longer be permitted or even
tolerated, more so by the law. |
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At this juncture, I wish to take judicial notice of that which is known
the world over, that |
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"The provisions of the Constitution are nor time-worn adages or
hollow shibboleths. They are vital, living principles that authorise and
limit government powers in our nation". |
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Learned Counsel also pointed out what Mohamed A.J.A., of the Supreme Court
of Namibia said in Ex parte Attorney-General, Namibia: In re Corporal
Punishment by Organs of State 1991 (3) SA 76 as regards the question of
corporal punishment, thus: |
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"What may have been accepted as a just form of punishment some
decades ago, may appear to be manifestly inhuman or degrading today.
Yesterday's orthodoxy might appear to be today's heresy". |
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Now in the Report of a Judicial Colloquium held in Bangalore, Pakistan on
February 24 to 26 1988 (Developing Human Rights Jurisprudence , Commonwealth
Secretariat, London September 1988), the Hon. Justice Michael Kirby, CMG,
President of the Court of Appeal, Supreme Court of New South Wales,
Australia, said (at p.78 of the Report): |
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"...in the function of Courts in giving meaning to a written
Constitution to legislation on human rights expressed in general terms or
even to old precedents inherited from judges of an earlier time, there is
often plenty |
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[END OF PAGE 166]
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of room for judicial choice. In that opportunity for that choice lies the
scope for drawing upon each Judge's own notions of the content and
requirements of human rights. In doing so the Judge should normally seek to
ensure compliance by the Court with the international obligations of the
jurisdiction in which he or she operates. An increasing number of Judges in
all countries are therefore looking to international developments and drawing
upon them in the course of developing the solutions which they offer in
particular cases that come before them". |
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At the same Colloquium the Chief Justice of Pakistan, Muhammad Heleen
C.J., voiced his own opinions thus (pages 101-103 of the Report): |
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"A State has an obligation to make its municipal law confirm to its
undertakings under treaties to which it is a party. With regard to
interpretation, however, it is a principle generally recognised in national
legal systems that, in the event of doubt, the national rule is to be
interpreted in accordance with the States international obligations..." |
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The domestic application of human rights norms is now regarded as a basis
for implementing constitution values beyond the minimum requirements of the
Constitution. The international human rights norms are in fact part of the
constitutional expression of liberties guaranteed at the national level. The
domestic courts can assume the task of expanding these liberties". |
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I am prepared to accept and embrace the views of these two great Judges
and hold them as the light to guide my feet through the dark path to the
ultimate construction of the provisions of our Constitution now in dispute. |
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However, whatever the views of Judges within the Commonwealth must have
been in the past as regards the position of a State's international
obligations and other undertakings vis-a-vis their domestic laws, many of
them have since the past two decades or so begun to have a re-think. They
have started to express the opinion that they have an obligation to ensure
that the domestic laws of their countries conform to the international
obligations of those countries. Lord Searman in Attorney-General v.
British Broadcasting Corporation (1981) AC 303, at page 354, HL, said: |
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"Yet there is a presumption, albeit rebuttable that our municipal law
will be consistent with our international obligations". |
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And in Schering Chemicals Ltd v. Falkman Ltd (1982), QB at 18;
(1982) 2 All ER 321, CA, Lord Denning, MR, said of the Law England that: |
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"I take it that our law should conform so far as possible with the
provisions of the European Convention on Human Rights." |
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[END OF PAGE 167]
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I would wish to call attention to two documents which were placed before
us. The first is the Convention on the Elimination of All Forms of
Discrimination Against Women which was adopted by the General Assembly of the
United Nations GA Res. 34/180 on December 18, 1979 by a vote 130-0, and which
came into effect on December 3, 198 1. Article 2 of the Convention says that
States Parties to it "condemn discrimination against women in all its
form", and that they would take all appropriate measures, including
legislation for "the purpose of .guaranteeing women the exercise and
enjoyment of human right and fundamental freedom on a basis of equality with
men" (Article 3). Article 9 (1) says that "States Parties shall
grant women equal rights with men to acquire, change or retain their
nationality. They shall ensure in particular that neither marriage to an
alien nor change of nationality by the husband during marriage shall
automatically change the nationality of the wife "whilst Article 9 (2) says
that "States Parties shall grant women equal rights with men with
respect to the nationality of their children". |
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By the end of February 1990, 100 States had ratified or acceded to this
Convention. There is no evidence that Botswana is one of the 100 States that
have ratified or acceded to the Convention but I take it that a Court in this
country is obliged to look at the Convention of this nature which has created
an international regime when called upon to interpret a provision of the
Constitution which is so much in doubt to see whether that Constitution
permits discrimination against women as has been canvassed in this case. |
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I take judicial notice that |
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"Every individual shall be entitled to the enjoyment of the right and
freedoms recognised and guaranteed in the present Charter without distinction
of any kind such as race, ethnic group, colour, sex, language, religion,
political opinion". |
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And Article 3 says: |
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"1. Every individual shall be equal before the law. |
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2. Every individual shall be entitled to equal protection of the
law". |
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I take the view that in all these circumstances a court in this country,
faced with the difficulty of interpretation as to whether or not some
legislation breached any of the provisions entrenched in Chapter II of our
Constitution which deal with Fundamental Rights and Freedoms of individual,
is entitled to look at the international agreements, treaties and obligations
entered into before or after the legislation was enacted to ensure that such
domestic legislation does not breach any of the international conventions,
agreements, treaties and obligations binding upon this country save upon
clear and unambiguous language. |
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[END OF PAGE 168]
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In my view, this must be so whether or not such international conventions,
agreements, treaties, protocols or obligations have been specifically
incorporated into our domestic law. In this respect I wish to make reference
to what Barker, J., said in Bird's Galore Ltd v. Attorney-General &
Another- (1989) LRC (Const.) 928 at page 939 thus: |
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"An international treaty, even one not acceded to by New Zealand, can
be looked at by the Court on the basis that in the absence of express words
Parliament would not have wanted a decision maker to act contrary to such a
treaty for example Van Gorkorn v. Attorney-General (1977) 1 NZLR 535
where the treaty had not been acceded to by New Zealand". |
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If an international convention, agreement, treaty, protocol, or obligation
has been incorporated into domestic law, there seems to me to be no problem
since such convention, agreement and so on will be treated as part of the
domestic law for purposes of adjudication in a domestic court. If it has
merely been signed but not incorporated into domestic law, a domestic court
must accept the position that the Legislature or the Executive will not act
contrary to the undertaken given on behalf of the country by the Executive in
the convention, agreement, treaty, protocol or other obligation. However, where
the country has not in terms become a party to an international convention,
agreement, treaty, protocol or obligation, it may only serve as an aid to the
interpretation of a domestic law, or the construction of the Constitution if
such international convention agreement, treaty, protocol etc. purports to or
by necessary implication, creates an international regime within
international law recognised by the vast majority of States. One can cite
some of such conventions, agreements, treaties, protocols which have created
regimes which no member of the community of nations can or should neglect
with impunity. Take for example the United Nations Declaration of the Rights
of the Child adopted by Resolution 1286 on November 29, 1959 which says that
the child shall, |
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"Wherever possible grow in the care and under the responsibility of
his parents..." |
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and that - |
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"a child of tender years shall not, save in exceptional
circumstances, be separated from the mother". |
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Another example is United Nations General Assembly Declaration on the
Elimination of Discrimination against Women passed on September 7, 1967 to
the effect that- |
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"Discrimination against women, denying or limiting as it does their
equality of rights with men is fundamentally unjust and constitutes an
offence against human dignity". |
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One may also be permitted once more to note the African Charter on Human
Rights and Peoples' Rights Article 18 (3). It says emphatically that |
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"The State shall ensure the elimination of every discrimination
against women and also ensure the protection of the rights of the women and
the child as stipulated in international declarations and convention". |
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[END OF PAGE 169]
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In my view, there is clear obligation on this country like on all other
African States signatories to the Charter to ensure the elimination (of)
every discrimination against their women folk. In my view, it is the clear
duty of this court when faced with the difficult task of the construction of
provisions of the Constitution to keep in mind the international obligation.
If the Constitutional provisions are such as can be construed to ensure the
compliance of the State with its international obligations then they must be
so construed. It may be otherwise, if fully aware of its international
obligations under a regime creating treaty, convention, agreement or
protocol, a State deliberately and in clear language enacts a law in
contravention of such treaty, convention, agreement, or protocol. However, in
this case before this court the clear provisions of Section 3 of the
Constitution accords with the international obligations of the State whilst
construing Section 15 in the manner canvassed by the Appellant will lead to
the inevitable failure of the State to conform with its international
obligation under international regimes created by the UN and the OAU. In this
regard I am bound to accept the position that this country will not
deliberately enact taws in contravention of its international undertakings
and obligations under those regimes. Therefore the Courts must interpret
domestic statutory laws in a way as is comparable with the State's
responsibility not to be in breach of international law as laid down by law
creating treaties, conventions, agreements and protocols within the United
Nations Organisation and the Organisation of African Unity |
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In the light of all the foregoing, therefore, the Constitution must be
held not to permit discrimination on grounds of sex which will be a breach of
international law. Therefore Section 4 of the Citizenship Act must be held to
be ultra vires the Constitution and must therefore be and is hereby declared
null and void. |
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Relevance of Other Sex-discriminatory Statutes |
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Before I am completely done with this aspect of this appeal, I must take
note that the Learned Deputy Attorney-General has called our attention to and
listed as an Appendix to his Heads of Argument, certain Statutes which in his
submission are not gender neutral. This he said in order to convince us that
there can be nothing wrong with the Citizenship Act, Section 4, in that there
are other provisions on our Statute books which are similarly sex
discriminatory. With due respect to Learned Counsel all the arguments founded
on this are not only irrelevant, but they probably call for further scrutiny
by the Legislature. This Court is not, however, in these proceedings,
concerned with whether or not any provisions of the 26 Statutes listed by the
Learned Counsel are ultra vires the Constitution or not. |
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If all our Statutes contain provisions which are ultra vires one provision
of the Constitution or the other, this Court should not be deterred by that
fact from pronouncing on the one provision which has been challenged. |
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What we have been called upon to decide in these proceedings is whether a
single provision is ultra vires Section 3 and some other Sections of the
Constitution. Learned Counsel tells us that for example under the
Administration of Estate Act, Cap. 31:01, Section 28 (5) the administration
can be granted to a |
[END OF PAGE 170]
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woman only with the husband's consent; that under the Deeds Registry Act,
Cap 33:02, Section 18 (4), immoveable property cannot be registered in the
name of a woman married in community of property; and that under the
Companies Act Cap. 42:01 such a woman can be Director of a Company only if
her husband gives his consent. As I have said, this Court has not been called
upon to make any pronouncement as to the validity of any or all of these
provisions, and I therefore refrain from making any pronouncement on them.
However, the Learned Deputy Attorney-General is quite right in pointing out
that there are some other areas of human existence that persons of both sexes
cannot for obvious reasons be expected to have equal treatment. As an example
of course, is that a pregnant woman may not be sentenced to death (under the
Penal Code): and that a pregnant woman who is in employment will be entitled
to a maternity leave (under the Employment Act), and so on. But the matter
before this Court in this appeal is not of that nature. What has been
canvassed before us in this appeal is the construction of a certain provision
of the Citizenship Act. Had we accepted the views canvassed by the Appellant
this Court would then have given the State - the Legislature, the Executive,
and the Judiciary the power to take actions within their own spheres of
government, which without limit, could be discriminatory against the women
folk. In my view, that cannot be correct, and for this reason and for the
other very cogent and compelling reasons so clearly and ably advanced by the
Learned Judge President in his judgement, I do hold that the learned trial
Judge was right in holding that Section 4 of the Citizenship Act is ultra
vires the Constitution. |
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Locus Standi |
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The Appellant has submitted that the present Respondent had no locus
standi to have brought the original application in the Court below. If
any person had such a locus standi it was either the Respondent's
husband or her children. The argument of the Learned Deputy Attorney-General
in this regard are not only attractive, but superficially plausible. Again my
Learned Brother the Judge President had dealt with this matter, and I fully
and respectfully accept and embrace his views and the conclusions reached by
him. |
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According to the Learned Deputy Attorney-General, the Respondent had no
locus to have brought this suit before the High Court because the
Constitution by itself, Section 18 (1) provides that |
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"If any person alleges that any of the provisions of Sections 3 to 16
(inclusive) of this Constitution has been, is being or is likely to be
contravened in relation to him, then... that person may apply to the High
Court for redress". |
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The Learned Attorney-General emphasises that the alleged contravention of
any of the Constitutional provisions must be in relation to the person who
has instituted the proceedings. In this case the alleged contravention of the
Constitution was only in relation to two of the children of the Respondent to
whom she could not pass her own citizenship by virtue of the Citizenship Act,
Section 4. The Respondent has neither personally suffered any injury nor does
she apprehend any arising out of the Citizenship Act, argued Counsel for the
Appellant. After all the popularis actio of the Roman Law have never
been |
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[END OF PAGE 171]
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part of Botswana Common Law. Placing reliance on some decisions of the
Courts of the Republic of South Africa and on some dicta of some of our
brothers on the Benches of that country, the Learned Deputy Attorney-General
goes further to summit that "The Principle of our law is that a private
individual can only sue on his own behalf, not on behalf of the public. The
right he seeks to enforce must be available to him personally, or the injury
for which he claims redress must be sustained or apprehended by him". |
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Learned Counsel for the Respondent, Mr Browde, SC, provides an answer to
these two submissions when he says that the South African cases relied upon
by the appellant are both mis-applied and, in any event, inappropriate for a
determination of the present issue. "They arc inappropriate since they
even concern common law rules of standing while the present case requires an
interpretation of a constitutional instrument which specifically confers
standing in broad terms". But then the Learned Deputy Attorney-General
goes on to submit further that "political adverse consequences which are
speculative in nature rather than imminent and threatened, will not be
sufficient to confer locus standi under Section 18 of the
Constitution". In support of this submission the appellant cites a
number of decisions of the Courts of the Republic of South Africa, for
example Dalrymple Colonial Treasurer 1910 TS 372: Director of
Education, Transvaal v. McCagie and Ors 1918 AD 621: Uerivava v.
President of the South African Medical and Dental Council 1958 (2) TPD
315: and Cabinet of the Transitional Government of South West Africa v.
Eros 1988 (3) SA 369 AD. |
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In my view, the only question to be answered is whether, on all the facts
and circumstances of his case, the Respondent had the locus to have
instituted this action under Section 18 of the Constitution. Whatever the
common law says on the issue of locus standi becomes of little or no
importance. There are two legs to the case made by the Respondent. As I
understand it, it is her case that Section 4 of the Citizenship Act has
breached her right entrenched under Section 3 of the Constitution, that is,
the right to equal protection of the laws under paragraph (a) of the Section.
Because she is a woman, she is denied the equal protection of the law when
compared with her male counterpart. The Respondent also based her case on the
allegation that Section 4 of the Act also breached her right to liberty under
Section 5 of the Constitution in that her children, 5 and 3 years old, born
in lawful wedlock, are liable to be expelled from Botswana and because of her
peculiar relation to these children, her personal right to freedom of
movement is impaired. It is also her case, if I understand it correctly, that
the provision breached her right not to be subjected to degrading treatment
under Section 7, by reason of the same facts. The motherhood bond between her
and the minor children, 5 and 3 years of age, is under perpetual threat of
disintegration in |
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The Constitution of Botswana, like many other constitutions of the Commonwealth
framed in the past 30 years or so, have clearly shut the door of the Courts
of those countries against "a mere busy-body who is interfering in |
[END OF PAGE 172]
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things which do not concern him" (in the words of Lord Denning in Iz
v. Greater London Council, ex parte Blackburn (1976) 1 WLR 550, at
page 559); and those Courts "are not places for those who wish to meddle
in things which are no concern of theirs" as was proclaimed by Megarry
J., in Re Argentum Reductions (U.K.) Limited (1975) 1 WLR 186 at page
190, "just for the pleasure of interfering, or proclaiming abroad some
favourable doctrine of theirs of indulging a taste for forensic
display". Under our Constitution as well as under the Constitutions of
other countries with similar provisions - see Section 42, and Section 44 of
the Constitution of the Federal Republic of Nigeria, 1979 and 1989
respectively - for a person to have the locus he must "allege" that
any of the entrenched fundamental rights provisions "has been, is being
or likely to be contravened" "in relation to him". |
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It is perhaps essential at this stage to say that in Great Britain, where
there is no written Constitution, there has not bee a Statute directly giving
power to the Judiciary to review any act of the Legislature i.e. of the Queen
in Parliament. It seems clear therefore, that very little inspiration can be
drawn from the pronouncements of the Judges of that country save those who
take appeals from the Commonwealth countries. Also neither the Constitution
of the |
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In her classical book entitled Locus Standi and Judicial Review, Dr
Thio observed that: |
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"The problem of locus standi in public law is very much
intertwined with the concept of the role of the judiciary in the process of
government. Is the judiciary function primarily aimed at preserving legal
order by confirming the legislature and executive organs of government within
their powers in the interest of the public, jurisdiction de droit
objectif, or is it mainly directed towards the protection of private
individuals by preventing illegal encroachments of their individual rights, jurisdiction
de droit subjectif?" |
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I would say that in the case of |
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In order to give the Judiciary the power to exercise the latter primary
function, the Constitution itself has made provision in its Section 18. In my
view, the language of that Section is very clear and totally devoid of any
ambiguity. Therefore, founded upon the first leg upon which the claim is
based, there can be no dispute as to the locus of the Respondent in these
proceedings. |
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[END OF PAGE 173]
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When we come to the second leg upon which the Respondent's claim is based,
namely, the prevention of her two young children from acquisition of her
citizenship by descent, the matter is far more complicated and therefore
requires further consideration. However, here again 1 agree entirely with the
observations and conclusions of my Learned Brother, the Judge President, on
this aspect of the matter. In her affidavit sworn on February 9, 1992,
admitted by consent in these proceedings, the Respondent alleges that her
husband and her two young children were, on January 8, 1992, granted a
residence permit to reside in |
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In all these circumstances, there can be no doubt the Respondent has the locus
standi to bring this action. |
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I would therefore, for the reasons so ably articulated by my Learned
Brother, the Judge President, and by the additional and supporting reasons
which I have herein given, dismiss the appeal with costs as ordered by the
Judge President. |
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Bizos, Judge of Appeal |
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I concur in the judgement of the Judge President and the proposed orders
to be made dismissing the appeal from the judgement of Horwitz A.J. I agree
with the reasons advanced by the Judge President. |
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In view of the importance of the matter and the arguments advanced I
consider it necessary to deal with some of them. I will not set out the
provisions of the Constitution nor the authorities quoted by the Judge
President unless it is necessary for the purpose of understanding the views
expressed by me. |
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I accept what could not be seriously disputed by the Appellant, that the
Citizenship Act 1984 is discriminatory. Section 4 deprives her two minor
children |
[END OF PAGE 174]
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of automatic citizenship of |
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The main question to be answered is whether the Constitution allows the
Legislature to discriminate on the grounds of sex. The appellant contends
that it does. He argues that because the word sex is left out of the
definition in "discriminatory treatment" in Section IS (3) of the
Constitution, gender discriminatory legislation against women is permitted in
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The Appellant's submission ignores the clear and unambiguous words in
Section 3 of the Constitution |
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"Whereas every person in |
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and which thereafter, subject to certain limitations, sets out the rights
referred to above. I disagree that the use of the word "whereas" in
the context that it is used was not intended to confer the fundamental rights
set out in Section 3 but merely sets out a preamble or a statement of fact. |
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Section 18 of the Constitution provides |
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"...if any person alleges that any of the provisions of Section 3 to
16 (inclusive) of this Constitution has been, is being or is likely to be
contravened in relation to him, then..." |
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A remedy is then provided. I know of no way in which the provisions of a
preamble or a statement of fact may be contravened. |
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The Appellant's argument that Section 3 merely recorded a fact is
inconsistent with his submission that |
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I respectfully agree with the dicta of Maisels J.P., Aguda J.A., and
Kentridge J.A. in Attorney General v. Moagi 1981 B.X.L.I., and Petrus v.
The State 1984 B.K.R. 14 that as far as its language permits, the
Constitution should be given a broad construction. Their views and those of
many other eminent Judges in various countries have been set out in the
judgements of the Judge President and Aguda J.A. in this case. I find it
unnecessary to repeat them. The full bench judgement of Berker C.J., Mohan, ed
A.J.A. and Dambutsana A.J.A. in Minister of Defence Namibia v. Mwandinghi
1992 (2) SA 355 (Nh SC) and the cases therein cited provide further
support for the approach to be adopted. |
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I am of the view that even if the matter before us is approached on the
basis of what has been called "the austerity of tabulated
legalism", the result would be the same. I intend examining the issue in
accordance with some of the main rules of statutory interpretation as
enunciated in the English and South African Courts in whose judgements this
court has sought guidance in the past. |
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[END OF PAGE 175]
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What has become known as Lord Wensleydale's "Golden Rule" was
enunciated in Grey v. Pearson 6 HLC 106: |
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"We are to take the whole statute together and construe it
altogether, giving the words their ordinary signification, unless when so
applied they produce an inconsistency... so as to justify the Court in
placing on them some other signification, which, though less proper, is one
which the Court thinks the words will bear." |
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Solomon J.A. in Dadoo Ltd & Others v. Krugersdorp Municipal Council
1920 at 554 said: |
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"Prima facie, the intention of the Legislature is to be deduced from
the words which it has used. It is admissible for a Court in construing a
statute to have regard not only for the language of the legislature but
also to its object and policy as gathered from a comparison of its several
harts, as well as from the history of the law and from the circumstances
applicable to its subject matter. If on considerations of this nature, a Court
is satisfied that to accept the literal sense of the words would obviously
defeat the intentions of the legislature it would be justified in not
strictly adhering to that sense but in putting upon the words such other
signification as they are capable of bearing" (my emphasis). |
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In Attorney-General Tvl v. Additional Magistrate for Johannesburg 1924
AD, 421 at 436 Kotze J.A. relying on English law said: |
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" "A statute" says Cockburn C.J., `should be so construed
that, if it can be prevented, no clause, sentence or word shall be
superfluous, void or insignificant. The Queen v Bishop of |
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In Ditcher v. |
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the Privy Council advised |
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"It is a good general rule in jurisprudence that one reads a legal document
whether public or private, should not be prompt to ascribe - should not,
without necessity or some sound reason, impute - to its language tautology or
superfluity, and should be rather at the outset inclined to suppose every
word intended to have some effect or be of some use". |
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In Wellworths Bazaars Ltd v. Chandlers Ltd and Another 1947 (2) SA
37 (A) Davisaja J.A. at p.43 said: |
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"...a Court should be slow to come to the conclusion that the words
tautologous or superfluous" |
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If Appellant's argument that gender discrimination is authorised by the
Constitution is to be upheld, the Court would either have to ignore the
inclusion of the word "sex" in Section 3, or say that it was
included for some mere cosmetic purpose. The main reason advanced by the
Appellant for his contention is that the word "sex" does not appear
in Section 15 (3) wherein affording |
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[END OF PAGE 176]
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different treatment to different persons on the grounds of race, tribe,
place or origin, political opinions, colour or creed, is deemed to he
discriminatory. |
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I cannot ignore that the word "sex" appears in Section 3. I can
find no necessity nor any sound reason for doing so. |
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As Solomon J.A. said in Dadoo's case (supra) we must also have regard to
the object, political history and circumstances applicable to the subject
matter of the statute we have to interpret. |
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The Constitution of Botswana was enacted on 30 September 1966, in
substantially similar circumstances as those mentioned by Lord Wilberforce in
The Minister of Home Affairs (Bermuda) and Another v. Fisher & Another
1980 AC 319 at 328/329 where he says that the United Nations Universal
Declaration of Human Rights of 1948 and the European Convention for the
Protection of Human Rights and Fundamental Freedoms of 1953 had some
influence. Both documents were no doubt inspired by the Atlantic Charter of
1941 which was intended to give hope for a better future for mankind after
World War II. This was to be achieved by recognising the right of all people
to self b determination and self government. |
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The African Human and People's Charter and other continental and regional
charters and declarations followed. |
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By the middle of the 20th century the terms "Man" as used in
"The Rights of Man" and "People" as used in "We the
People" did not men "men only" nor men and women of a certain
colour. Women over 30 in the |
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An analysis of the history, language, object and policy of the several
parts of the Constitution of Botswana leads to an inevitable conclusion that
gender discrimination was not permitted in legislation enacted after the
adoption of the Constitution. |
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The adoption of the Constitution of sovereign |
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I am not unmindful that I have introduced the word "or her" in
my paraphrasing Section 3 of the Constitution. It speaks of "every
person". By the time the Botswana Constitution was enacted no one seriously
contended that the word "person" and "people" did not
mean both men and women. |
[END OF PAGE 177]
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The rights referred to in Section 3 and under what circumstances exceptions
to their exercise are set out in greater detail in Section 4 to 14. Sections
I S and 18 have been set out, discussed and interpreted by the Judge
President. Section 16 and 18 deal with what is to happen when |
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In terms of Section 89 (3) parts of the Constitution may not be altered
unless a special procedure is adopted and the Bill is passed by two thirds
majority. All the sections in Chapter II are so entrenched together with
other sections set out in section 89 (3) dealing with the office of the
President, of Ministers and Assistant Ministers in Chapter IV. The
qualifications for the election of a person as President are set out in
Section 33. Being a woman is not a disqualification. A woman may become
Vice-President in terms of Section 39 and a member of the Cabinet as Minister
or assistant Minister in terms of Section 42. Sections 61 and 62 set out the
qualifications and disqualifications for persons to become members of the
National Assembly. More than 10 issues are addressed in the provisions of
these sections. Being a woman is not a disqualification. |
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If the makers of the Constitution of Botswana intended it to discriminate
against women because it is a patrilineal and male orientated society, they
could not have missed the opportunity of expressly debarring them from
holding officer as President, Minister, Deputy Minister or Member of
Parliament. Persons entitled to the franchise are set out in Section 67, also
entrenched in terms of Section 89 (3) (b). Women are not excluded from the
right to vote. |
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Mr Kirby, in an able and well researched argument submitted that one of
the reasons why the Constitution should he interpreted as allowing gender
discrimination against women to quote his words, "the whole fabric of
the customary law in Botswana, is based upon patrilineal society, which is
gender discriminatory in its nature". He also drew our attention that
only adult men participate in the proceedings of the Lekgotla, an assembly
presided over by the Chief in which the affairs of the community are
discussed and decided upon and which at times act as a Court. We were told
that women do not participate in these proceedings unless they are personally
involved when the Assembly sits as a Court. Mr Kirby quoted numerous other
examples in customary law, the Roman Dutch Common Law and the Statute Law of
Botswana in which gender discrimination is to be found. |
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The argument taken to its logical conclusion would mean that although the
makers of the Constitution provided that a woman hold the highest offices in
the land and have the right to vote for persons seeking high office,
discriminatory legislation could be passed vitally affecting her, because
among other reasons, she was not entitled in customary law, to attend the
Lekgotla. In order to achieve this purpose, so the argument would have to
proceed, the makers of the Constitution, deliberately left out the word
"sex" from Section IS (3) of the Constitution despite what was
declared in Section 3. |
[END OF PAGE 178]
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The makers of the Constitution were well aware that provision would have
to he made for the law of the country and expressly provided in Section IS
(3) that: |
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"Nothing contained in or done under the authority of any law shall be
held to be inconsistent with the provisions of this section |
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(a) if that law was enforced immediately before the coming into operation
of this constitution and has continued in force at all times since the coming
into operation of this constitution; or |
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(b) to the extent that the law repeals and re-enacts any provisions which
has been contained in any written law at all times since immediately before
the coming into operation of Constitution". |
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The meaning is clear. The. laws of the past could not be declared unconstitutional
in terms of Section 18 but no new laws discriminating against any of the
grounds set our in Sections 3 to 14 after the adoption of the Constitution.
The exceptions are clearly set out in Sections 4 to 14. The further
exceptions set our in sub-sections (4), (5), (6), (7) and (8) of Section 15
and Sections 16 and 17 deal with a state of emergency. |
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Having gone to so much trouble to provide so many exceptions for the protection
of fundamental rights, why would the makers of the Constitution not expressly
state that women could be discriminated against in |
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In my view, the overall intention of the makers of the Constitution is so
clear that even if the matter is to be approached by very strict adherence to
"the austerity of tabulated legalism", the maxim in Latin has no
application. The intention of the makers of the Constitution that there would
be no gender discrimination in any law passed after the adoption of the
Constitution is clearly expressed. To hold the contrary would have the effect
of allowing a rule of interpretation to contradict the express words of the
Constitution. |
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Mr Kirby in reply to Mr Browde's able argument relying on judgements of
American, Australian, Canadian, Tanzanian and other Courts, to the effect
that the Constitution such as that of Botswana should be given a broad
construction rather that a restrictive interpretation, Mr Kirby urged us to
have regard to Botswana's peculiarities and idiosyncrasies. During his
peroration he appealed to us not to listen to what the world has to say, but
to the heartbeat of |
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[END OF PAGE 178]
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ain. Although the customs, traditions and culture of a society have to be
borne in mind and afforded due respect they cannot prevail over the express
provisions of the Constitution. |
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In relation to the protection of personal and political rights the primary
instrument to determine the heartbeat of |
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In my view, there is no substance in the submission that the applicant
does not have locus standi in relation to her children. |
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The Judge President has referred to the cases dealing with locus standi
in Roman Dutch Law and more particularly, Wood & Others v.
Odangwa Tribal Authority & Another 1975 (2) SA 294 (AD). I agree with
this conclusion. The matter was considered further in Jacobs en `n Andere
v. Waks en Andere 1992 (I) SA 521 (AD) in circumstances fairly close to
the matter before us. It was argued on appeal on behalf of the Mayor of the
Town Council of Carltonville that had resolved to reserve entry into a park
to whites only that the applicants did not have locus standi to apply
to Court to set aside the decision. The first and third applicants were found
to have locus standi because they were a director and a manager
respectively of businesses within the town. Because the African population
living in a segregated township adjoining the town had mounted a successful
boycott of all the businesses as a protest against the town racist decision,
they contended that the decision of the Town Council should be set aside so
that the boycott may come to an end. The second applicant, an African, who
lived and had a business in the segregated township of Khutsong, but did his
shopping in Carltonville and was closely involved with its community,
contended that the decision of the Town Council extremely upset him and that
he and many other black people felt insulted and aggrieved. The Provincial Division
to which the application was brought held that the second applicant did not
have locus standi, Waks en Andere v. Jacobs `n Ander 1090 (1) SA 913
at 918F-I. However, Botha J.A. with whom Chief Justice Corbett and
Smallberger, Milne and Nienaber J.J.A. concurring, held in the Court of
Appeal that he did have locus standi because his dignity had been
effected by the decision of the Council. The Learned Judge of Appeal says
that dignitas is a deep rooted notion in Roman Dutch Law which the
Court will protect. |
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The strength of the bond between a mother and her children does not
require discussion. Whatever may aggrieve the children directly affects her.
To say that she has no locus standi to protect her children's right to
citizenship of the country of their birth because their father is an alien,
finds no support in the law of |
[END OF PAGE 180]
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Schreiner, Judge of Appeal. |
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I do not intend to set out details of the notice of motion and affidavits
in this matter because they appear from the judgement of the learned Judge
President. This will be a minority judgement and, consistent with its status,
I will make it relatively short. |
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Introduction |
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The Constitution of Botswana followed upon, and was necessary for, the
independence of the country from the control of the |
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The procedures for changing the Constitution are three (see Section 89).
Certain provisions may be altered by Parliament in the ordinary way by simple
majority, save that the text of the bill making the change must be published
in the Gazette not less than thirty days before its introduction (sub-section
(2). There are other sections the amendment of which requires that the final
voting in the Assembly should take place not less than three months after the
previous voting thereon and, on the final vote, must be supported by not less
than two-thirds of all the Members of the Assembly (sub-section (3). Lastly,
there are certain provisions which can be altered only by the further step of
a referendum of voters after the change has been passed by Parliament
(sub-section (4). The provisions concerning citizenship in Chapter III of the
Constitution were capable of being altered merely by publishing the text at
least 30 days before introduction of the Bill. The amendment of the
"Bill of Rights" sections in Chapter II requires that the final
voting should take place not less than three months after the previous voting
and achieve a two-thirds majority. The matters requiring a referendum include
alterations to the composition and operation of Parliament, elections, the
franchise and the provisions establishing the Superior Courts. This is
understandable because three provisions are intended to entrench a particular
form of democratic government and set up a court structure to ensure that
that government acts within the Constitution. |
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Interpretation of Constitutional Provisions |
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There are dicta in judgements of this Court and others which declare that
a Constitution should justifiably receive a slightly different approach to
interpretation than ordinary legislation. These statements must be confined
to those |
[END OF PAGE 181]
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portions of the Constitution which create or protect rights of citizens or
others in the country. The bulk of the Constitution of Botswana, indeed
everything other than Chapter II, contains nothing which would justify any
peculiar treatment from the point of view of interpretation. Thus, to the
extent that certain dicta refer generally to the Constitution and lay
down a "liberal" or "generous" construction or a rule
that a "technical" or a "close and literal"
interpretation is to be avoided, they must be applicable, in my view, only to
those provisions which are designed to confer rights upon or introduce
protections for the individual person. |
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In a recent decision of the Supreme Court of Namibia, Minister of
Defence, Namibia v. Mwandingh 1992 (2) SA 355 (NmS), the Court was
called upon to interpret the words "anything done under such laws prior
to date of independence in Sub-article (3) of Article 140 of the
Constitution. The sub-article had nothing to do with the rights and freedoms
of individuals, but was a purely transitional provision to secure the
continued operation of the laws introduced by the previous government and
things done pursuant thereto. Notwithstanding this the Supreme Court used the
authorities concerning liberality and absence of technicality in
interpretation to support the contention that the words "anything
done" should mean "anything done, lawful or unlawful". While
the ultimate conclusion is no doubt correct, I do not think that there was
any justification for approaching the transitional provision in a
constitutional statute in any different way from a transitional provision in
an ordinary statute. It may be that lawyers and Judges are inclined in their
approach to any ordinary problem of interpretation to look very closely at
dictionary meanings of words and grammatical construction and to apply rules
which have been laid down by the common law or developed in judicial precedent
over the years in order to ascertain the intention of the Legislature. This
has the merit of consistency and clarity. |
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Sometimes the word of a statute specifically, by way of definition, direct
that a particular meaning should be given to a word or a certain approach to
interpretation should be adopted. This may be an absolute injunction or
merely a direction that, though the context should be the ultimate
determinant, this statutory meaning or approach should generally be applied.
The admonition by the Courts that, in the case of the provisions of a
Constitution creating or protecting human rights, the interpretation should
be "liberal" and "generous" and not "technical"
or "close and literal" does not justify any departure from a definition
section of the absolute kind or the "plain" meaning of words or
sentences in order to give them a meaning and effect which the Court
considers that the lawmaker should have given them. The. general injunctions
regarding the interpretation of Constitutional statutes should not be relied
upon as a licence to a Court, even when dealing with rights and freedoms, in
effect, to alter a provision to avoid a consequence which it considers is
not, in view of its assessment of the position in existing society, socially
or morally desirable, if the meaning is clear. The special approach to
interpretation applies only (a) where there is an ambiguity or an obscurity
or (b), in a very different way, when the meaning of a word requires to be
determined at a particular time against an existing social situation. The
first justifiable relaxation from |
[END OF PAGE 182]
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conventional interpretation is illustrated by Minister of Home Affairs
and another v. Collins McDonald Fisher [ 1980] AC 318(PC) where
the meaning of the words "child of that person" in section 11 of
the Constitution of Bermuda was considered. The Privy Council advised that
the commonly applied limited meaning of "child" to be found in
various contexts did not apply and that 'a child of that person" was
intended to include illegitimate children. The second situation is
illustrated by Ex parte Attorney-General |
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The liberal, generous, non-literal, non-technical approach to human rights
legislation is dictated by its nature and purpose and is justified on this
ground, not it is not to be taken as permission to Courts to cease always to
seek the attention of the Legislature from the words which have been used. If
a human rights code does not outlaw discrimination on the ground of sex, the
Court has aright to declare that it does because, in its view, such a
provision is desirable in the atmosphere of the time: it must be satisfied
from the wording of the provision that the Legislature intended to prevent
such discrimination. |
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Citizenship Legislation |
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It was necessary by reason of the change in status of the area which is
now |
[END OF PAGE 183]
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the determining factor, it was acquired patrilineally irrespective of
legitimacy or illegitimacy. Section 27 dealt with Commonwealth citizenship.
Save in case of Commonwealth citizenship, dual citizenship was prohibited,
and in order to obtain |
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It was common cause between the parties during the argument of the present
case that, if sections 4 and 5 of the present Citizenship Act, Chapter 01:01
conflicted with Chapter II of the Constitution, Chapter III, if it had not
been embodied in the Constitution, would also have done so, because, though
not in the same terms as the Citizenship Act, it was based upon the same
principle, namely patrilineal determination. |
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At the hearing before this Court Counsel for the Appellant placed great
emphasis upon the presence in the new Constitution of provisions which
discriminated against women. This, it was argued, was a very fair indication
Chapter II of the Constitution was not intended to contain provisions which
prohibited discrimination against women. I did not hear any real answer that
point. However, if the wording of Chapter II compels a construction which
does give rise to such an anomalous situation, this construction must prevail
notwithstanding the anomaly. |
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The Citizenship Act was assented to on the 31st December 1982, and has
been amended. The two sections to which the respondent now takes objection as
follows: |
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"4 (1) A person born in |
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(a) his father was a citizen of |
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(b) in the case of a person born out of wedlock, his mother was citizen of
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(2) .................................... |
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5 (1) A person born outside |
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(a) his father was a citizen of |
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(b) in the case of a person born out of wedlock, his mother was a citizen
of |
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(2) .................................... |
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Locus Standi |
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There was some debate concerning the locus standi of the respondent
to bring proceedings especially in regard to the declaration concerning
section 5. None of the children of the respondent was born outside |
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Since the argument of the respondent was based upon the contention that
sections 4 and 5 of the Citizenship Act had been, or were being, or were
likely to, contravene the Constitution in relation to her and not to her
children, she has, |
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[END OF PAGE 184]
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I consider, locus standi. In a sense, I suppose if at the end of
the case it is found that this is not so, and the respondent has not shown a
contravention actual or potential of any of sections 3 to 16 of the
Constitution, she would then have been shown not to have locus standi. But
I would prefer to put it on the basis of a failure to prove her case rather
than an absence of her right to bring it. However, this should not be
regarded as a license to any person to bring proceedings notwithstanding that
he is unable to show that the provisions of Sections 3 to 16 have been, are
being or are likely to be infringed in relation to him. |
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Section 3 |
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Fundamental to the problem of the structure of Chapter II of the
Constitution is the meaning and intention of section 3. Does it, by itself
and independently of the remainder of the sections of the Chapter, create and
protect rights and freedoms which may or may not be the subject of further
characterisation and definition in the subsequent provisions of the Chapter?
If this is so, the Courts will in the future be called upon to give substance
to those general rights .and freedoms which are described in
sub-paragraphs (a), (b), and (c) and, in these circumstances, the additional
rights and freedoms not specifically dealt with in section 4 to 15 will have
to be spelled out by the Courts in individual cases as and when they arise.
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The alternative approach is to regard section 3 as an introductory or
explanatory section which does not, by itself, create substantive rights and
freedoms, but which is intended to create the background against which
the specific right-creating provisions of section 4 to IS have to be viewed.
It would then be taken as in the nature of a preamble or recital. I am
of the view that the form of section 3 is such that the second approach must
be the correct one. The Court must not look to this section
independently of those that follow and try to discover whether a particular
right which is claimed to exist falls within the description of the rights
and freedoms in sub-paragraph (a), (b), or (c) taken together or separately.
If that had been the intention, the word "whereas" would not have
been used to introduce the section. The presence of this word is
inappropriate to a section which is intended to create rights. Though its
meaning varies in the context in which it is used, it generally introduces a
statement fact and not a legislative command. The possible relevant meanings
of "whereas" in the Shorter Oxford Dictionary are as
follows:- "1. In view or consideration of the fact that; forasmuch as
inasmuch as (Chiefly, now only, introducing a preamble or recital in a formal
document)..." |
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If the section had been intended by itself to be a right-creating
provision, it would have read: "Every person in |
[END OF PAGE 185]
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sions of the Chapter. It is clear also from these words that the provisions
of subsequent sections 4 to 15 are there "for the purpose of affording
protection to the rights and freedoms" and not primarily to introduce
qualifications or restrictions thereon. |
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One is tempted in a case which for the first time requires of the Court an
analysis of the basic structure of the Bill of Rights Chapter of the
Constitution to illustrate or support a conclusion by taking various
hypothetical situations in order to establish its correctness. However, this
might have the effect, in subsequent concrete situations debated before this
Court or before the High Court, of reliance upon, or discussions about, obiter
dicta in relation to matters which have not been argued in the case under
discussion and might lead to wrong decisions. If possible, it is better left
alone when the case law about the meaning of the Constitution is emerging for
the first time and to stick closely to what is strictly relevant and
necessary to decide the matter placed before the Court. I will therefore not
discuss the question of what the result would be of holding, in regard to
matters other than those under immediate discussion, that section 3 gives
enforceable rights and freedoms which do not fall within those declared and
enacted in detail in the later section of Chapter II. Section 3 is a preamble
or recital and may be used to assist in the construction of any of the
provisions of Sections 4 to 15. . It is declaratory, in general terms, of the
goal which it is sought to be reached by the provisions of the Chapter as a
whole and its tenor must be studied if a doubt arises concerning the
meaning and effect of the specific provisions regarding freedoms and
liberties which are contained in Section 4 to 15. |
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The preamble or considerans, as it is sometimes called in
Roman-Dutch law, is still to be found in private acts and in public laws of
more solemn import (see Steyn Uitleg van Wette, 5th edition page 145). It is
generally an expression of the intention of the Legislature and, in situations
where the operative provisions of the legislation are not clear, may
constitute a strong indication of the correct meaning (see Colonial
Treasurer v. Rand Water Board 1907 TS 479 at 482; Law Union and Rock
Insurance Co. Limited v. Carmichael's Executor 1917 AD 593 at 597; Attorney-General
v. Prince Earnest Augustus of Hanover (1957) AC 436 at 467). One cannot
look to it, as the respondent in the present case would have us do, to find
within its four walls substantive legislative claims. In the present case
which basically concerns alleged unlawful discriminatory legislation on the
ground of sex, it is also significant that, though the section declares an
entitlement to fundamental rights and rights irrespective, inter alia, of
sex, Section 3 does not, when listing the fundamental rights and freedoms,
mention freedom from discrimination. But for section 15 it would appear that
freedom from discrimination, as such, was envisaged as a right or freedom
which should be protected separately. The only rights which might conceivably
embrace freedom from discrimination on the ground of sex is the right to
"liberty" and the right not to be subjected to "degrading
treatment". These matters will be dealt with hereafter. |
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Section 15 |
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As I have already said the right not to be subjected to discrimination is
not dealt with in section 3. To some extent, therefore, Section 15 stands
alone |
[END OF PAGE 186]
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among the various rights and freedoms to be found in Chapter II because it
does not fall obviously within any of the rights and freedoms mentioned in
paragraph (a), (b) and (c) of section 3. Section 15 prohibits two things -
discriminatory legislation (sub-section (1)) and discriminatory treatment
(sub-section (2)). |
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Both forms of discrimination are declared to be subject to certain
specified exceptions and qualifications. It is not necessary in the context
of section 15 to investigate the various possible nuances of meaning of the
word "discriminatory". This is so, because it is defined and
defined not in the common way by the introductory words "unless the
context otherwise requires" or "unless from the context it otherwise
appears" or similar modifications. In sub-section (3) it says that
"discriminatory" for the purpose of section 15 "shall mean"
what follows. Thus the introduction of a latitude in definition dictated by
content is not permitted because the very purpose of the definition is to
avoid such an approach. The intention is clearly that no other meaning than
that maintained in sub-section (3) may be applied when construing section 15. |
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Discriminatory" in terms of sub-section (3) means "affording different
treatment to different persons attributable wholly or mainly to their
respective descriptions by race, tribe, place of origin, political opinions,
colour or creed whereby persons of one such description are subjected to
disabilities or restrictions to which persons of another such description are
not made subject or are accorded privileges or advantages which are not
accorded to persons of another such description". Why no mention of
discrimination on the grounds of sex? For the respondent it was argued that,
notwithstanding the absence of mention of discrimination on the grounds of
sex, the definition must be as if such discrimination were expressly
mentioned together with the other descriptions of personal characteristics
actually listed. As I have already said, section 3 only becomes relevant if
it can be shown that there is some vagueness or ambiguity in section 15 (3).
The mere absence of mention of sexual discrimination does not create any such
vagueness or ambiguity and a reference to section 3 in order to create one is
not permissible. This would be similar to the situation of the unambiguous
operative provision and ambiguous preamble which is dealt with in |
[END OF PAGE 187]
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to be found in section 3. As for the second possibility, I cannot think
that what is obviously intended as an attempt to list different descriptions
of persons which is only limited to the extent that the ejusdem generis rule
should be applicable to it. |
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Thus the idea that the list of descriptions of persons in sub-section (3)
of section 15 is not exhaustive must be rejected. |
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The last contention on behalf of the respondent was that there had been an
error by the omission of sex from the list of descriptions in sub-section 3
of section 15. Whatever the Roman-Dutch law might say about circumstances in
which it is justifiable to substitute or add to words in an enactment, one
thing is clear and that is that this only becomes possible when it is
apparent what the legislature intended. It was argued that something as
clearly part of modern sociological thinking as the desirability of
non-discrimination on the ground of sex could not conceivably have been
excluded from the description of persons who are entitled to
non-discriminatory protection. |
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No evidence was introduced in the papers before the Court which could
throw light on the subject of the development of a belief in non-discrimination
between the sexes throughout the world. There have been cases in this Court
where reference has been made to books on the social structure and customs of
certain groups of persons in Botswana (see Petrus and Another v. the State
(1984) BLR where reference is made to Prof. Schapera's, A Handbook of
Tswana Law and Custom and also Major E.S.B. Tagart's,Report on
Conditions existing among the Masarwa in the BamangwatoReserve). In the
present case, the State called in aid the Restatement of African Law S
Botswana and the above mentioned handbook to establish that the basis of
customary law in Botswana was at the relevant time patrilineal and not
matrilineal and that, inevitably, there must be discrimination against women
in such a society. I do not think that, in the absence of agreement between
the parties as to the attitude of the |
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For the respondent it was argued that the existence of certain
International Agreements before and after the date of the passing of the
statute embodying the Constitution of Botswana to some of which Botswana was
a party showed that the majority of the world was opposed to discrimination
against women on the ground of sex and that it must not be lightly assumed
that the Botswana Parliament would approve of a constitution in which
discrimination on the round of sex was not outlawed. |
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Sub-section (9) of section 15 specifically preserves the validity of
discriminatory provisions in legislation on the statute book when the
Constitution came into operation. Furthermore, the provisions of Chapter III
before amendment, whereby the children of a marriage were, in certain
circumstances, to take the citizenship of their father and not their mother
originally formed part of the Constitution itself. It would therefore be very
hard to find that there was an |
[END OF PAGE 188]
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intention expressed in the Constitution to outlaw discrimination on the
ground of sex so as to comply with international declarations in this regard.
No doubt the then Government of Botswana, by becoming a party to such
declarations, committed itself to a course which will ultimately lead to the
exclusion of sex as a basis for discrimination, but the existence of such a
direction is not a reason so compelling as to require the alteration of the
meaning of section 15(3) by the insertion of words which are not there. |
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The conclusion to which I am therefore driven is that discrimination on
the ground of sex is not prohibited by section 15 of the Constitution. |
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Sections 5 And 7 |
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I now deal with certain other provisions of Chapter II because it has been
suggested that, even if they are not "discriminatory" within the
definition of that term in sub-section (3) of section 15, the citizenship
provisions of the present Act may nevertheless infringe upon other rights and
freedoms provided for in sections 4 to 14. |
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Section 5 prohibits deprivation of "personal liberty", subject
to certain limitations. It was suggested that, even if they are not
"discriminatory" within the meaning of Section 15(3), in
considering this section one should have regard to the realities of the
situation. The mother of children who are not citizens of this country
because their father is not a Botswana citizen may, de facto, if not de
jure, be restricted in her movements because of her obvious duty to care
for and protect her minor children wherever they may be and because of the
possibility that they may be prevented from having the right to enter this
country by reason of their not being Botswana citizens. |
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In certain situations there may well be a very real limitation upon the
options open to a woman who is a |
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Is this a deprivation of "personal liberty" as contemplated by
section 5(1) of Constitution? I do not think that it is. No doubt the question
of what is or is not a condition of "personal liberty" will be the
subject of debate in the future in relation to a number of situations. The
Citizenship Act, by declaring the children to have a particular citizenship,
does indeed limit the practical options which a family might have in the
ordering of their personal lives. It also involves irritations and
frustrations. But whatever might be the position of persons directly
subjected to the legislation, in this case the children, it cannot, by any stretch
of the imagination be said that the respondent's right to personal liberty is
infringed by the fact that her children do not acquire Botswana citizenship
under the Citizenship Act notwithstanding that she has to adapt her life to
that situation. There are very few Acts of Parliament which do not place
practical restraints, directly or indirectly, upon the ways in which people
are entitled to behave. |
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Section 7 prohibits, inter alia, "degrading treatment", and it
is suggested that the mother of children who are not |
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Conclusion |
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In my view the provisions of sections 4 and 5 of the Citizenship Act are
not ultra vires Chapter II of the Constitution and I would allow the appeal,
set aside the declaration made by Horwitz AJ and direct that the respondent
should pay the costs in both the High Court and the |
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Puckrin, Judge of Appeal |
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I have read the judgements of the other members of this Court and it is
with sincere regret that I am unable to concur with the conclusions reached
by my learned brothers constituting the majority of the Court. My regret
stems, first, from the fact that I do not lightly disagree with the views of
judges with such. experience and erudition in this field and it is my earnest
hope that my view will not be considered unduly contumacious, and, second,
because I have great , personal sympathy for the aspirations of the
Respondent in this case, being Unity Dow. However, I do not perceive that it
is my duty as a Judge of this Court to impose my personal convictions upon an
interpretation of the Constitution, for to do so, in my respectful view,
permits this Court to become the.: overlord of the Constitution rather than
its guardian. I agree entirely with the rationes and conclusion reached by my
Brother Schreiner J.A., and in order W avoid prolixity I shall not repeat in
this judgement anything stated by him. I do, however, wish to deal briefly
with certain philosophical questions relating to the interpretation of
constitutions. |
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It is correct that Government, the Court and citizens should pay obeisance
to the Constitution of the land. In order to emphasize the importance of a
written Constitution authors are wont to describe it in lofty, indeed often
anthropomorphic language. But. the truth of the matter is mundane; a
Constitution consists of a piece of paper with cyphers inscribed thereon. It
is the thought and; will of men who breathe life into the inanimate body of a
Constitution. First, Parliament enacts laws in terms of the Constitution,
second, the Courts are |
[END OF PAGE 190]
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enjoined to interpret those laws and, (as in the present case) the
Constitution, and third, the citizens of the land have to obey, and act in
accordance with, such laws, but are entitled to rely on the protection
afforded them by the Constitution. It is this complicated interaction between
various branches of Government and the citizens of the land which render a
Constitution the majestic thing of which much is spoken. |
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I turn now to deal with the manner in which the Courts fulfil a role in
upholding a written Constitution. A Constitution, like any other statutory
enactment, has to be interpreted. It is often said that it is the function of
the Court to interpret the law, not to make it. This somewhat pithy statement
requires considerable qualification. As pointed out by Gray in Nature and
Sources of Law, 2nd edition at pp.170-171: |
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"Statutes do not interpret themselves; their meaning is declared by
the Courts, and it is within the meaning declared by the Courts, and no other
meaning, that they are imposed on the community as law... A statute is the
express will of the legislative organ of the society; but until the dealers
in psychic forces succeed in making full transference a working controllable
force... the will of the legislature has to be expressed by words, spoken or
written; that is by causing sounds to be made or by causing black marks to be
made on white paper." |
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In a sense therefore, all law is judge-made law and the shape in which the
Constitution or statute is imposed on a community as a guide to conduct is
that statute or Constitution as interpreted by the Courts. The Courts thus
put life into the dead words of a statute or Constitution. But this by no
means implies that the Courts have a wide and unfettered discretion to
interpret either Constitutions or statutes. The power of the courts to
interpret Constitutions and statutes is circumscribed by various rules of
interpretation, some less well defined than others. But the first among all
rules must surely be that where the language used in a Constitution is
unambiguous and clear the Courts may not deviate therefrom. Indeed, so much
is clearly implied in the dictum of Kentridge J.A. in his judgement in this
Court in Attorney General vs. Moagi (1981) B.L.R. 1 at p.32, where he
stated the following: |
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"A Constitution such as the Constitution of Botswana, embodying
fundamental rights, should as far as its language permits be given a
broad construction. Constitutional rights conferred without express
limitation should not be cut down by reading implicit restrictions into them
so as to bring them in line with the common law." (my underlining) |
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Thus if the language of a Constitution permits of only one interpretation,
then it is that interpretation which must he upheld by the Courts. Of course,
this approach may sometimes be simplistic because language by its very nature
is often, at best, an imprecise tool and there are few words or phrases (at
any rate in the English language) which do not permit of some nuance. How
then are Courts to approach the interpretation of a Constitution where some
nuance is present in a phrase or word? There are at least three schools of
thought on the subject which have been lucidly identified by Madame Justice
Bertha Wilson of the Supreme Court of Canada, in a paper presented at a
seminar at the University of Edinburgh, May 1988 on "Constitutional
Protection of Human |
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Rights - the Canadian Experience since 1982". I adumbrate the schools
hereunder: |
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1. The "Framer's Intent" School Of Interpretation: |
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An influential school of American scholars believes that the Constitution
should be interpreted according to the intent of those who framed it.
Adherents to this school hold that for a Constitutional enterprise to be
legitimate answers to Constitutional problems must come from the text of the
Constitution itself. Concomitantly, contemporary mores are irrelevant to the
exercise and the only relevant values are those held by the framers at the
time that the Constitution was created. |
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Whilst the "Framer's Intent" principle may be extremely relevant
in the interpretation of ordinary statutes, its applicability to the
construction of a Constitution has all but been debunked in those
jurisdictions which share in common with Botswana a written Constitution.
Perhaps the most serious criticism of the principle is that a group of
draughtsmen, perhaps long since deceased, should be allowed to constrain the
progressive development of any nation. The American experience provides an
extreme example, for to apply the "Framer's Intent" principle would
forever place American governmental thought into an 18th century
straight jacket. This is precisely what the Court sought to achieve in the
infamous case of Dred Scott vs. Sanford 19 How. 393 (1857). |
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In this case the Court was asked to determine whether blacks were American
citizens within the meaning of the Constitution. Chief Justice Taney
concluded: |
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"The question before us is, whether the class of persons described in
the plea in abatement compose a portion of this people, and are constituent
members of this sovereignty? We think they are not, and that they are not
included, and not intended to be included under the word 'citizens' in the
Constitution, and can therefore claim none of the rights and privileges which
that instrument provides for and secures to citizens of the United States. On
the contrary, they were at that time considered as a subordinate and inferior
class of beings, who had been subjugated by the dominant race." |
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Dred Scott, supra p.404-405. |
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There seems to me little doubt that the sentiment expresses by Holmes,
J.A. in Missouri vs. Holland 252 US 416 (1920) to the effect that
"...the case before us must be considered in the light of our whole
experience and not merely in that of what was said a hundred years ago"
is correct. In my view, therefore, the "Framer's Intent" is not the
correct approach to be adopted in interpreting the Constitution of Botswana. |
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Indeed, this Court has recognised this expressly in the judgement of Aguda
J.A. in Petrus and Another vs. The State (1984) B.L.R. 14 as follows: |
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... [The Constitution] ...is a written, organic instrument meant not to
serve not only the present generation, but also several generations yet
unborn... but the function of the Constitution is to establish a framework
and principles of government, broad and general in terms, intended |
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work and principles of government, broad and general in terms, intended to
apply to the varying conditions which the development of our several
communities must involve..." |
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2. The "Living Tree" Metaphor |
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The metaphor was first used by Lord Sankey in the case Edwards vs. The
Attorney General of Canada (1930) A.C. 124 (P.C.). The point to be
decided in the case was whether women were "persons" and eligible
as such to be appointed to the Canadian Senate. The Supreme Court of Canada
concluded that women were not "persons" within the meaning of the
Canadian Constitution. An appeal to the Privy Counsel was upheld, the Council
concluding that women were indeed "persons". Lord Sankey in his
speech referred to the Canadian Constitution as "a living tree capable
of growth and expansion within its natural limits." |
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Ibid. p.136. |
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Madame Justice Bertha Wilson op. cit. states the following: |
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"The Living Tree metaphor is not without its critics. It provides, it
is said by some, a cloak for the crudest and least warranted judicial
activism. Even the most modest of trees, it is pointed out, occasionally
needs pruning. Besides, how does one know at what point the Constitution
ceases to be a living tree and becomes a noxious weed choking off legitimate
governmental goals? Thus, if the American Framer's Intent approach risks
being over conservative, the Canadian Living Tree approach is open to the
converse charge of being overly liberal and anti-democratic. As Canadian
Judges, we are appointed and not elected officials. There would be something
deeply illegitimate about our forays into judicial review of legislation if
all there was to them was a desire to substitute our own personal values for
those of our duly elected representatives. We cannot placidly assume that by
some mysterious process we, the Judges, have been given access to the true
answers to fundamental, social and political dilemmas... There is, therefore,
no plausible justification for us to substitute our personal values and our
moral choices for those of the elected legislature. The metaphor of the
Living Tree is a harmless one so long as it is used merely to suggest that a
Constitution must adapt and grow to meet modern realities. It could, however,
become dangerous and anti-democratic if it were used to justify the shaping
of the Constitution according to the personal values of individual
judges." |
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I would heartily endorse the views expressed above by Madame Justice
Bertha Wilson. If I may be permitted some poetic licence in regard to the
"Living Tree" metaphor; the nutrients for the living tree must
perforce derive from the democratic process and not from judicial conviction,
and I do not consider myself either competent or qualified to superimpose my
own personal convictions upon the Constitution and hence the people of
Botswana. |
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3. Purposive Interpretation |
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In recent years the House of Lords, (and particularly Lord Diplock) has
emphasized the necessity of a "purposive construction" in relation
to the written word. Thus a purposive construction has been applied in
Constitutional cases, The Law of Contract and even the Law of Intellectual
Property. |
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Attorney General of the Gambia vs. Momodou Jobe (1984) 3 WLR 174
p.183. |
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Soeiete United Docks vs. Government of Mauritius (1985) LRC (fonts)
801 at p.844. |
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Catnic Components Ltd. vs. Hill & Smith Ltd. (1982) R.I.C. 183
(HL). |
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Once again, I quote from Madame Justice Bertha Wilson, op. cit.: |
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"Thus Constitutional interpretation should be purposive. Rights
should be interpreted in accordance with the general purpose of having rights,
namely the protection of individuals and minorities against an overbearing
collectivity." |
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In her judgement in R vs. Morgentaler (1988) I S.C.R. 30 the same
Judge expresses herself as follows: |
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"The [Canadian Charter] is predicated on a particular conception of
the place of the individual in society. An individual is not a totally
independent entity disconnected from the society in which he or she lives.
Neither, however, is the individual a mere cog in an impersonal machine in
which his or her values, goals and aspirations are subordinated to those of
the collectivity. The individual is a bit of both. The Charter reflects this
reality by leaving a wide range of activities and decisions open to legitimate
government control while at the same time placing limits on the proper scope
of that control. Thus, the rights guaranteed in the Charter erect around each
individual, metaphorically speaking, an invisible fence over which the State
will not be allowed to trespass. The role of the Courts is to map out, piece
by piece, the parameters of the fence." |
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This approach to construction accordingly allows a Judge to combine a
purposive with a contextual approach in order to determine the ambit and
extent of any individual freedom or right under debate. |
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In my view a purposive construction of a Constitution is the correct means
of interpretation. It provides a court with a metewand whereby the excesses
of personal conviction may be kept in check. At each juncture in the exercise
of construction a Judge should ask himself the question "within the
context of this Constitution and taking into account the societal values,
what is the purpose of the right sought to be protected?" The question
is not therefore one of what the framers of the Constitution may have had in
mind as at the date of its drafting, nor of what individual Judges believe
the protection afforded under the Constitution should be. |
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In my view, therefore, and applying a purposive construction to the
Constitution and attempting to "map out piece by piece the parameters of
the fence", I am of the view that the Constitution, and particularly
s.15 thereof, does not preclude the legislature from enacting a statute which
provides that citizen- |
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ship shall pass in a patrilineal but not matrilineal fashion. In my view,
for the reasons set out jn my Brother Schreiner J.A.'s judgement, the
provisions of s.15 of the Constitution are clear and it is not
necessary to invoke such extraneous aids to interpretation as |
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Accordingly, I would allow the Appeal. |