Attorney-General
v Dow
Court of
appeal, Botswana, 3 July 1992
Amissah JP
This
appeal is brought by the Attorney-General against the judgment given by Horwitz
AJ in favor of Unity Dow in her claim that her constitutional rights had been
infringed by certain specified provisions of the Citizenship Act 1984.
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:
The Applicant Unity Dow is a
citizen of
Prior to their marriage on 7 March
1984 a child was born to them on 29 October, 1979 named Cheshe Maitumelo Dow
and after the marriage two more children were born Tumisang Tad Dow born on 26
March 1985 and Natasha Selemo Dow born on 26 November 1987.
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.
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.
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:
4(1) A person born in
5(1) A person born outside
Botswana shall be a citizen of Botswana by descent if, at the time of his
birth: (a) his father was a citizen of Botswana; (b) in the case of a person
born out of wedlock, his mother was a citizen of Botswana. (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.
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
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:
13.
I am prejudiced by the section 4(1) of the Citizenship Act by reason of my
being female from passing citizenship to my two children Tumisang and Natasha.
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.
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
18. I am desirous of being
afforded the same protection of the law as a male
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.
21. As a citizen of the
22. I verily believe that the
provisions of the Constitution have been contravened in relation to myself.
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. Section
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
judgment.
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 judgment are as follows:
I therefore find that section 4
[of the Citizenship Act] is discriminatory in its effect on women in that, as a
matter of policy,
(i) It may compel them to live and
bear children outside of wedlock.
(ii)
Since her children are only entitled to remain in
(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
(iv) In addition applicant is
jointly responsible with her husband for the education of their children.
Citizens of
(v) Since the children would be
obliged to travel on their father's passport the applicant will not be entitled
to return to
What I
have set out at length may inhibit women in
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.
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 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.
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.
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.
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:
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.
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.
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 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
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.
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 Magi 1981 BLR 1 at page 32, Kentridge JA said:
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.
In Petrus
and Another v The State (1984) BLR 14, my brother, Aguda JA had occasion to
review the courts' approach to constitutional construction. In that review, he
said at page 34:
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
Aguda JA
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
CLR 469 at pp 611-612, that:
...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.
He also
cited Sir Udo Udoma of the Supreme Court of Nigeria in Rain Rabin v The
State (1981) 2 NCLR 293 ATP 326 where that learned judge said:
...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.
Finally,
he cited Justice White of the Supreme Court of the United States in South
Dakota v North Carolina (1940) 192 US 268; 48 ED 448 at p 465, where the
learned judge said:
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.
Aguda JA
concludes his review in the Petrus Case by saying:
...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.
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) AC 319 al pages 328 to 329; Dicksen CJ in the
Canadian case of R v Big M Drug Mart Ltd (1985) 1 SCR 295 at page
344 the Namibian case of Mwondingi v
Minister of Defence, Namibia 1991 (1) SA 851 (run) at 8576 -858B; and the
Zimbabwe cases of Hewlett v Minister of Finance and Another 1982 (1) SA
490(c) at 495D-496E and Ministry of Home Affairs v Bickle and Others 1984
(2) SA 439 per Georges CJ at page 447; United States cases such as Boyd v
United States I 16 US 616 at 635 and Trop v Dunes 356 US 86.
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.
It is now
necessary to examine the constitutional provisions giving rise to the dispute
in this case. Section 3 states that:
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:
(a) life, liberty, security of the
person and the protection of the law;
(b) freedom of conscience, of
expression and of assembly and association; and
(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."
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:
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.
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 enacting the
provisions of that chapter.
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 2 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
‘every person in Botswana is entitled to the fundamental rights and freedoms of
the individual, . . . whatever his race, place of origin, political
opinions, colour, creed or sex’ is, and continues to enact positively that ‘the
provisions of this Chapter shall have effect for the purpose of affording
protection to those rights and freedoms (that is, the rights and freedoms itemised
in (a), (b) and (c) of section 3), subject to such limitations as are contained
in those provisions (that is, the provisions in the whole of Chapter 2), 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’. 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 2 put the
matter beyond doubt. It provides that:
Subject to the provisions of subsection (5) of this
section, 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, without prejudice to any other action with
respect to the same matter which is lawfully available, that person may apply
to the High Court for redress.
If a
preamble confers no right but merely provides an aid to the discovery of
legislative intention, it is impossible to hold otherwise than that from
section 18(1), it is clear that contravention of section 3 leads to enforcement
by legal action.
From the
wording of section 3, it seems to me that the section is not only a substantive
provision, but that it is the key or umbrella provision in chapter 2 under
which all rights and freedoms protected under that chapter must be subsumed.
Under the section, every person is entitled to the stated fundamental rights
and freedoms. Those rights and freedoms are subject to limitations only on two
grounds, that is to say, in the first place, ‘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’, and secondly on the ground of
‘public interest’. Those limitations are provided in the provisions of chapter
2 itself, which is constituted by sections 3 (but effectively, section 4) to
19, of the Constitution.
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 the question of discrimination at all.
Discrimination is mentioned only in section 15 of the Constitution; it is,
therefore, that section only which we ought to look at in a case which
basically alleges discrimination. But that argument assumes that section 15 is
an independent section standing alone in chapter 2 of the Constitution. It is
only if section 15 is considered as standing on its own, separate and distinct,
and 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 2, other than those dealing with derogations under
the general powers exercisable in times of war and emergency in sections 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 section 15 cannot be taken in
isolation as requiring separate treatment from the other relevant provisions of
chapter 2, or indeed from those of the rest, of the Constitution.
Support is
given to this view by a look at other provisions of chapter 2. 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 2.
Take, for
example, section 6 of chapter 2 which details the protection against slavery,
servitude or forced labour. Section 3 does not specifically mention the words
‘slavery’, ‘servitude’ or ‘forced labour’. 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 labour 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 chapter 2 which gives protection
against torture or inhuman or degrading treatment. Section 3 does not
specifically mention ‘torture’, ‘inhuman treatment’ or ‘degrading treatment’.
But section 3(a) confers the right to ‘life, liberty, security of the person
and the protection of the law’. It would be strange to propound the argument
that a person who has been subjected to torture, inhuman or degrading treatment
has only his right under section 7 infringed, but that his right to life,
liberty, security of the person and the protection of the law remains intact
because torture, inhuman or degrading treatment are not specifically mentioned
in section 3. The same applies to section 14 which deals with freedom of
movement. Again freedom of movement is not mentioned in section 3 although the
person deprived of such freedom cannot be said to be enjoying his ‘liberty’ or
‘security of the person’ which are mentioned in section 3.
The
In
Botswana, when the Constitution, in section 3, provides that ‘every person
. . . is entitled to the fundamental rights and freedoms of the
individual’, and counts among these rights and freedoms ‘the protection of the
law’, that fact must mean that, with all enjoying the rights and freedoms, the
protection of the law given by the Constitution must be equal protection.
Indeed, the appellant generously agreed that the provision in section 3 should
be taken as conferring equal protection of the law on individuals. I see
section 3 in that same light. That the word ‘discrimination’ is not mentioned
in section 3, therefore, does not mean that discrimination, in the sense of
unequal treatment, is not proscribed under the section.
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 2 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.
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 Botswana. What, it may be asked in this
connection, about children? Do they have the same rights and freedoms as
adults? What about aliens? Can they claim the same rights and freedoms as
citizens? The answer to both questions is, while under the jurisdiction of the
State of Botswana, yes. But subject to whatever derogations or limitations may
have been placed by specific provisions of the Constitution with respect to
them. With regard to a child, section 5 which gives protection against
deprivation of personal liberty, for example, makes in subsection 1(f) an
exception by restrictions imposed on him ‘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 eighteen years’. Section 10(11)(b) places a
limitation on the right of persons under the age of eighteen to free access to
proceedings in court. The qualifications for the office of President (section
33) places a minimum age of thirty five on the capacity to be elected
President, and a minimum age limit of twenty-one years is placed on the
capacity for election of a member of Parliament. These are all limitations to
his freedoms under the Constitution.
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 Botswana; and by section
15(4)(b) which permits discrimination ‘with respect to persons who are not
citizens of Botswana’.
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.
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 all persons irrespective of
sex.
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 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.
Before I
attempt to answer the question whether any of the sections of the Citizenship
Act infringes 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 Botswana, and that the
Citizenship Act was a law based on descent which was required to ensure that
the male orientation imperative of Botswana society and the need to avoid dual
citizenship be advanced. There is no doubt that the Citizenship Act is an Act
of Parliament. I also accept that an Act of Parliament is presumed to be intra
vires the Constitution. But it must be added that that presumption is not
irrebutable. The power of Parliament to legislate in the terms propounded is
found in section 86 of the Constitution. It is a provision which, I daresay, is
found in the constitutions of all former colonies and protectorates of Britain,
and which gives the legislature the amplitude of power to legislate on all
matters necessary for the proper governance of a country. In Britain, the power
of Parliament to legislate is uncircumscribed. The fact was what led Philip
Herbert, fourth Earl of Pembroke and Montgomery, in a speech at Oxford on April
11, 1648 to say that, “My father said, that a Parliament could do anything but
make a man a woman, and a woman a man”.
But as we
know, when in the 19th Century Kay LJ gave a property and mathematical
rendition of the same sentiment by saying in Metropolitan Railway Co v
Fowler (1892) 1 OB 165 at 183, that, ‘Even an Act of Parliament cannot make
a freehold estate in land an easement, any more than it could make two plus two
equal five.’ Scrutton LJ in Taff Vale Railway Co v Cardiff Railway Co
(1917) 1 Ch 199 at 317 countered by saying, ‘I respectfully disagree with him,
and think that ‘for the purposes of the Act’ it can effect both statutory results.’
(See Megarry A Second Miscellany-at-Law.)
Scrutton
LJ’s statement is correct because Britain does not live under a written
constitution; no piece of legislation by Parliament has primacy over others and
Parliament cannot legislate to bind future Parliaments. We, therefore, speak of
the supremacy of Parliament in Britain. What the British Parliament has done or
is capable of doing is no sure guide to us trying to understand a written
constitution. The American revolution which started off the era of written
constitutions changed all that. With a written constitution, under which the
existence and powers of the legislature are made dependent on the constitution,
the power to legislate is circumscribed by the constitution. As section 86 of
the Botswana Constitution put it, the power of parliament ‘to make laws for the
peace, order and good government of Botswana’, is ‘subject to the provisions of
the Constitution’. Parliament cannot, therefore, legislate to take away or
restrict the fundamental rights and freedoms of the individual, unless it is on
a subject on which the Constitution has made an exception by giving Parliament
power to do so, or the Constitution itself is properly amended. Instead of the
supremacy of Parliament, we have, if anything, the supremacy of the
Constitution.
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 2, 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.
Our
attention has been drawn to the patrilineal customs and traditions of the
Botswana people to show, I believe, that it was proper for Parliament to
legislate to preserve or advance such customs and traditions. Custom and
tradition have never been static. Even then, they have always yielded to
express legislation. Custom and tradition must a fortiori, and from what
I have already said about the pre-eminence of the Constitution, yield to the
Constitution of Botswana. A constitutional guarantee cannot be overridden by
custom. Of course, the custom will as far as possible be read so as to conform
with the Constitution. But where this is impossible, it is custom not the
Constitution which must go.
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(1) of the Interpretation
Act which provides that:
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
textbook 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 to its subject matter, but
not to the debates in the Assembly.
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
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.
Besides,
the report is a document prepared some years after both the Constitution and
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 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 Botswana thought was the overriding characteristic of their
society which should not be altered by any rights or freedoms to individuals
conferred by the Constitution. That would have given me some assistance, other
defects aside for the moment, in determining the intention of the framers of
the Constitution in enacting the fundamental rights and freedoms chapter. But
that is not the case here. Even if, therefore, the report qualifies under
section 24(1) under “any papers laid before the national assembly in reference
to the enactment or to its subject matter”, I do not think it in any way aids
my efforts at interpreting the Constitution, which is the question at hand, or
whether provisions of the Citizenship Act, which to me are quite clear,
infringe the Constitution.
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. Botswana as a sovereign republic dates from
30 September 1966. Before then persons who were within the territorial area
which is now Botswana acquired their citizenship under British laws. The law of
citizenship in Britain is now governed by legislation. But the development of
the concept of citizenship, like most other political concepts, dates as far
back as from ancient Greece. Walker in The Oxford Companion to Law
describes citizenship as
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.
In ancient Athens only some of the population were citizens;
resident aliens, women, and slaves were excluded. The Romans similarly
initially had a restricted concept of citizenship, but gradually extended it
until in AD 212. Caracalla’s Constitutio Antoniana gave citizenship to
most 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.
In modern practice what rights and duties attach to
citizenship depends on the municipal law of each state.
Mr Justice
Gray of the American Supreme Court in United States v Wong Ark 169 US,
18 Sup Ct 456, 42 L Ed 890 (1898) saw the development of the law on citizenship
in the following terms
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. .
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.
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 United States afterwards,
and continued to prevail under the Constitution as originally established.
That must
also have been the position with Botswana until independence. All who were born
within the protection or jurisdiction of the sovereign power became citizens by
birth. That, however, is not claimed to have interfered with the male
orientation of Botswana customary society.
The old
classic, Oppenheim on International Law volume 1 (Peace) (8ed 1955)
gives the international law aspect of the matter. At 645, it makes the
following distinction:
‘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.
By this, I
understand that Botswana nationality in the sense of the identity of the
Batswana people, which like the Poles would be a matter of descent, need not be
the same as Botswana nationality in the sense of citizenship. Although it is
possible that citizenship should by municipal law be based on descent or
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 was 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 Botswana, had started with a question of
allegiance, and been conferred on a basis of birth within the territorial
jurisdiction. In Taswell-Langmead’s Constitutional History (11ed 1960)
by TFT Plucknett, at 678, the position of the alien, the opposite of the
citizen, was contrasted with that of the citizen in these words
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 Rome; he might be an enemy; after the Reformation his
theology as well as his trading might arouse antipathy.
It is
clear that what the State of Britain was trying to guard against was not purity
in descent or guardianship, but a host of prejudicial activities which those
not within the sovereigns allegiance threatened. Of course in modern states, it
is the municipal law which determines the citizenship of the individual. The
legislature may choose which prescription to follow. The basis may be birth to
parents who are themselves citizens irrespective of where the child is born, or
may be birth within the territorial jurisdiction, while yet a third course may
have a mixture of both. There may be other prescriptions. It is all a matter
for the State legislature. But whatever course municipal law adopts must comply
with two prerequisites: it must, in the first place, conform to the
constitution of the state in question, and secondly it must conform to
international law. For as Oppenheim points out, at 643-4,
While it is for each state to determine under its law who
are nationals, such law must be recognised by other states only ‘in so far as
it is consistent with international conventions, international custom, and the
principles of law generally recognised with regard to nationality’.
As he
points out by way of example, a state which imposes its nationality upon aliens
residing for a brief period in its territory or upon persons resident abroad,
may not have the privilege so conferred accepted by other members of the
international community.
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 by 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. Other
combinations between the parents may produce similar results. In this very
case, the respondent’s eldest child, Cheshe, who acquired Botswana citizenship
at birth because her parents were not married at the time, also became, and
presumably still is, an American citizen by descent. Such a child may continue
with this dual citizenship for the rest of his or her life. But those states
which want to avoid dual nationality would then require the child to opt for
the citizenship which he or she wishes to continue with upon attaining
majority. The device for eliminating dual citizenship does not, therefore,
appear to me to lie in legislation which discriminates between the sexes of the
parents.
As far as
the present case is concerned, the more important prerequisite 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.
With those
considerations in mind, I come now to deal with the central question, namely,
whether section 15 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 subsections (1), (2), (3) and (4). They state as follows:
15(1) 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.
(2) Subject to the provisions of
subsections (6), (7) and (8) 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.
(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.
(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;
b. with respect to persons who are not
citizens of Botswana;
c. with respect to adoption, marriage,
divorce, burial, devolution of property on death or other matters of personal
law
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
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.
Subsection
(1) mandates that ‘no law shall made 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 what 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
Botswana society, in terms of the common law, the customary law, and statute
law.
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 a definition in 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.
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
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.
Before
testing the validity of that maxim in this case, I think we should examine
further the manner in which limitations on the fundamental rights and freedoms
of chapter 2 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–
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 the result of the use, to such extent and in such
circumstances as are permitted by law, of such force as is reasonably
justified– (a) for the defence of any person from violence or for the defence
of property . . .
In section
6(3) the protection from slavery, servitude and forced labour is limited by–
6(3) For the
purposes of this section, the expression ‘forced labour’ does not include– (a)
any labour required in consequence of the sentence or order of this court
. . .
In section
7(2) the protection from inhuman treatment is limited by–
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 in question authorises 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.
The
expression “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 ‘authorises’ 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; in 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 association; 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.
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 or authority. Then subsection (4) places the
limitations on that proscription. It opens by saying, “Subsection (1) 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(1) 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 etcetera 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.
If the
makers of the Constitution had intended that equal treatment of males and
females be excepted from the application of subsections 15(1) 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 15 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 the 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 (1), 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.
Faced with
the remarkable consistency in the manner in which the Constitution makes
exceptions to or places limitations on the protections that it grants, 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 quality a right expressly conferred by
section 3, the basic and umbrella provision for the protection of fundamental
rights and freedoms under the Constitution.
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:
33. Where an 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.
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 the 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 15
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:
24(2) The aids to construction referred to in
this section (that is, those dealing with what material could be used by a
Court as an aid to construction) are in addition to any other accepted aid.
The
occasions on which the expressio unius principle applies are summarised
in Bennion on Statutory Interpretation at 844 as:
. . . 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 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.
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 sections 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 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 by section 3. Here, as Bennion points out
at 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 BCR 37, cited by EA 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 far-sighted 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.
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 Botswana would similarly be offensive, although
not mentioned. Arguably religion is different from creed, but although creed is
mentioned, religion is not. Incidentally, it should also be noticed, that
although the definition mentions “race” and “tribe”, it does not mention
“community”, yet the limitation placed on subsection 15(1) by section 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
15(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.
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 Botswana
shall have no vote. Legislation in Botswana may also provide in that case that no
woman shall be President or be a member of parliament. The appellant states
that the legislature will not do that because there will be no rational basis
for it, and in any case it will not, under subsection 15(4)(e), be reasonably
justifiable in a democratic society. But is not the basis for such legislation
the same as the preservation of the patrilineal structure of the society which,
as has been urged, led to the deliberate omission of “sex” in the definition of
discrimination? In any case, the appellant cannot, for this purpose, take
advantage of the exception provided in section 15(4)(e) which permits
discrimination which is reasonably justifiable in a democratic society to
support his argument on the rationality of the basis of the legislation, because
in the first place that would be using the exception for purposes directly
opposite to what was intended, and secondly, on his own argument, if “sex” is
deliberately left out of the definition of discrimination in subsection (3) in
order to perpetuate the patrilineal society, it is left out for all purposes of
section 15, including the provisions of subsection (4)(e). That provision in
subsection 15(4)(e) expressly refers to “persons of any description as is
mentioned in subsection (3) of this section . . .” That, by the
argument of the appellant, cannot include anything done on the basis of the sex
of the person.
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 be 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 the 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 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 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.
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 as to the categories to be
included? Of course, treatment to different sexes based on biological
differences cannot be taken as discrimination in the sense that section 15(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 15(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 United States would say, as did
Taney CJ in Dred Scott v Sanford 19 How 393 (1857):
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 memorable 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.
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 forward 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 behaviour.
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 15(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 overlooked, and
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.
(See Walker in The Oxford Companion to Law.) That, I think, is the sense
in which personal law is used here. Apart from the laws on “adoption, marriage,
divorce, burial, devolution of property on death” of the communities to which
persons belong which are expressly mentioned in the provision, I would expect
the omnibus clause, “other matters of personal law”, to cover related matters
of family law on, for example, domicile, guardianship, legal capacity, and
rights and duties in the community and such matters. Otherwise, if the wider
meaning of all laws affecting personal legal status is taken as the correct
meaning, the omnibus clause in the exception would serve to wipe out
practically all protections given to individuals as persons. In the usual narrow
sense, however, citizenship, which is conferred by statute on a state-wide
basis is not a matter of personal law.
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:
15(9) Nothing contained in or done under
authority of any law shall be held to be inconsistent with the provisions of
this section – (b) to be 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.
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 came 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 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.
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:
22. A person born outside Botswana or after 30
September 1966 shall become a citizen of Botswana at the date of his birth if
at that date his father is a citizen of Botswana.
Obviously,
the Constitution there treated children of Botswana men differently from
children of Botswana women, in that the children of Botswana men acquired
citizenship which children of Botswana women did not necessarily acquire. In
their wisdom, the framers of the Constitution at the time, thought that the
prescriptions they provided for the acquisition of nationality for persons born
outside its territory or jurisdiction should be limited to descent through the
male line. It made no distinction between birth within wedlock or otherwise. It
made no provision with respect to the mother of the child. That was how the
Constitution framers thought Batswana citizens born outside Botswana should be
traced. We cannot declare a provision in the Constitution unconstitutional. It
would otherwise be a contradiction in terms. The Constitution had always had
the power to place limitations in its own grants. If it did so, what it enacted
was as valid as any other limitation which the Constitution placed on rights
and freedoms granted. What a constitutional provision can do, however, ordinary
legislation cannot necessarily do. The same limiting provision which the
Constitution places on a grant, if put into ordinary legislation may be open to
review on the ground of vires, and if found to infringe any of the provisions
of the Constitution will be declared unvalid, unless it could otherwise be
justified under the Constitution itself. The fact that the Constitution
differentiated between men and women in its citizenship has to be accepted as a
legitimate exception which the framers thought right. But that does not provide
a general license for discrimination on the basis of sex. My view on the
meaning of sections 3 and 15, therefore, is not altered by the original
provision in section 22.
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 Botswana society,
this was where it would have been found. It was the most important provision on
the acquisition of citizenship because it was the provision governing the
acquisition of citizenship by the overwhelming number of Botswana. Yet the
repealed section 21 of the Constitution simply stated that: “Every person
born in Botswana on or after 30 September 1966 shall become a citizen of
Botswana.”
The
learned Judge a quo referred to the intentional obligations of Botswana
in his judgment in support of his decision that sex-based discrimination was
forbidden under the Constitution. That was objected to by the appellant. But by
the law of Botswana, relevant international treaties and conventions, may be
referred to as an aid to interpretation. We noticed this in our earlier
citation of section 24 of the Interpretation Act which stated that, “as an aid
to the construction of the enactment a court may have regard to . . .
any relevant international treaty, agreement or convention . . .” The
appellant conceded that international treaties and conventions may be used as
an aid to interpretation. His objection to the use by the learned Judge a
quo of the African Charter on Human and Peoples’ Rights, the Convention for
the Protection of Human Rights and Freedoms, and the Declaration on the
Elimination of Discrimination against Women, was founded on two grounds. In the
first place, he argued that none of them had been incorporated into the
domestic law by legislation, although international treaties became part of the
law only when so incorporated. According to this argument, of the treaties
referred to by the learned Judge a quo, Botswana had ratified only the
African Charter on Human and Peoples’ Rights, but had not incorporated it into
domestic law. That, the appellant admitted, however, did not deny that
particular charter the status of an aid to interpretation. The appellant’s
second objection was that treaties were only of assistance in interpretation
when the language of the statute under consideration was unclear. But the
meaning of both section 15(3) of the Constitution and sections 4 and 5 of the
Citizenship Act was quite clear, and, therefore, no interpretative aids were
required.
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 contradictory
things? It is the provisions of the Constitution itself which give rise to the
difficulty of 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. Botswana was, at the time the Constitution was
promulgated, about to enter the comity of nations. What could have been the intentions
and expectations of the framers of its Constitution? It is to be recalled that
Maisels P in the Petrus case, referred to earlier, at 714 to 715 said in
this connection that:
. . . Botswana is a member of a comity of
civilised nations and the rights and freedoms of its citizens are entrenched in
its constitution which is binding on the legislature.
The comity
of civilised nations was the international society into which Botswana was
about to enter at the time its Constitution was drawn up. Lord Wilberforce in
the case of Minister of Home Affairs (Bermuda) v Fisher (1980) AC 319,
at 329 to 329 spoke of this international environment acting as one of the
contributory influences which fashioned and informed the approach of the
framers of the Constitution of Bermuda in words which could, with slight
modification, have been written equally for Botswana. He said:
“Here, however, we are concerned with a constitution,
brought in force certainly by Act of Parliament, the Bermudian Constitution Act
1967 of the United Kingdom, but established by a self-contained document.
. . . It can be seen that this instrument has certain special
characteristics. 1. It is, particularly in Chapter 1, drafted in a broad and
ample style which lays down principles of width and generality. 2. Chapter 1 is
headed protection of fundamental rights and freedoms of the individual.
It is known that this chapter, as similar portions of other
constitutions instruments drafted in the post-colonial period, starting from
Nigeria, and including the constitutions of most Caribbean territories, was
greatly influenced by the European Convention for the protection of human
rights and fundamental freedoms (1953) . . . That convention was
signed and ratified by the United Kingdom and applied to dependent territories
including Bermuda. It was in turn influenced by the United Nations Universal
Declaration of Human Rights of 1948. These antecedents, and the form of Chapter
1 itself, call for a generous interpretation, avoiding what has been called
‘the austerity of tabulated legalism’, suitable to give to individuals the full
measure of the fundamental rights and freedoms referred to.
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 Bermuda. Article 2 the
Universal Declaration of Human Rights of 1948 states that:
Everyone is entitled to all the rights and freedoms set
forth in this declaration, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.
The
British Government must have subscribed to this declaration on behalf of itself
and all dependent territories, including Bechuanaland, long before Botswana
became a State. And it must have formed part of the backdrop of aspirations and
desires against which the framers of the Constitution of Botswana formulted its
provisions.
Article 2
of the African Chapter on Human and Peoples’ Rights provides that:
Every individual shall be entitled to the enjoyment of the
rights and freedoms recognised 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.
Then
paragraphs 1 and 2 of article 12 state that:
1. Every individual shall have the
right to freedom of movement and residence within the borders of a state
provided he abides by the law.
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.
Botswana
is a signatory to this charter. Indeed it would appear that Botswana is one of
the credible prime movers behind the promotion and supervision of the charter.
The learned Judge a quo made reference to Botswana’s obligations under
such treaties and conventions. Even if it is accepted that those treaties and
conventions do not confer enforceable rights on individuals within the State
until Parliament has legislated its provisions into the law of the land, in so
far as such relevant international treaties and conventions may be referred to
as an aid to construction of enactments, including the Constitution, I 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:
I am strengthened in my view by the fact that Botswana is a
signatory to the OAU Convention on discrimination. I bear in mind that signing
the convention does not give it power of law in Botswana but the effect of the
adherence by Botswana to the convention must show that a construction of the
section which does not do violence to the language but is consistent with and
in harmony with the convention must be preferable to a ‘narrow construction’
which results in a finding that section 15 of the Constitution permits
unrestricted discrimination on the basis of sex.
That does
not seem to me to be saying that the OAU convention, or by its proper name the
African Charter of Human and Peoples’ Rights, is binding within Botswana as
legislation passed by its Parliament. The learned Judge said that we should so
far as is possible so interpret domestic legislation so as not to conflict with
Botswana’s obligations under the charter or other international obligations.
Indeed, my brother Aguda JA referred in his judgment at 37 to the charter and
other international conventions in a similar light in the Petrus case. I
am in agreement that Botswana is a member of the community of civilised states
which has undertaken to abide by certain standards of conduct, and, unless it
is impossible to do otherwise, it would be wrong for its Courts to interpret
its legislation in a manner which conflicts with the international obligations
Botswana has undertaken. This principle, used as an aid to construction as is
quite permissible under section 24 of the Interpretation Act, adds reinforcement
to the view that the intention of the framers of the Constitution could not
have been to permit discrimination purely on the basis of sex.
I now come
to the submission in 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 to pass on either section 4 or 5 of the Citizenship Act. The
appellant, it was submitted, is a practising lawyer, who on marrying on 7 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 by 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 her 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, 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 Botswana was
too remote for consideration.
And, in
the case of her present children, it was submitted that there were strong
reasons for holding that she was not sufficiently closely affected by any
action taken against them as a result of section 4 of the Act to enable her to
claim that the provisions of the Constitution were being or likely to be
contravened in relation to her by such action as required by section 18.
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.
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 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
1918 AD at 621; Veriava v President of SA Medical and Dental Council
1985 (2) SA 293 (T) at 315; and Cabinet of the Transitional Government of
SWA v Eins 1988 (3) 369 (A) were cited as authorities to show that section
18 of the Constitution reflected this principle when it provided that the wrong
(that is, 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 v Odangwa Tribal Authority 1975 (2)
SA 294 (A) at 310 where Rumpff CJ, after analysing the proposition that the actio
pupularis did not apply in Roman-Dutch law, said:
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.
On the contrary, in my view it should be widely construed because illegal
deprivation of liberty is a threat to the very foundation of a society based on
law and order.
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
judgment. It says that “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”, 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 (8ed
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 Botswana. Under section 18(1),
an applicant has the right to come before the courts for redress if he declares
with some foundation of fact that the breach he complains of has, is in the
process of being or is likely to be committed in respect of him. Where a person
comes requesting the aid of the courts to enforce a constitutional right,
therefore, the question which has to be asked in order that the courts might listen
to the merits of his case is whether he makes the required allegation with
reasonable foundation. If that is shown the courts ought to hear him. Any more
rigid test would deny persons their rights on some purely technical grounds. In
this connection I refer to a parallel situation in the case of Craig v Boren
cited earlier in which the United States Supreme Court at 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 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” 3.2% 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.
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 judgment 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 the allegation could be
clearer.
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.
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
because it is only the guardian who has a responsibility recognised by law, and
in Botswana, that guardian is the father. The very Constitution which all in
Botswana must revere recognises a parent’s, as distinct from the guardian’s,
responsibility towards the child. Recall that section 5(1)(f) states that:
5(1) No person shall be deprived of his personal
liberty save as may be authorised by law in any of the following cases, that is
to say – (f) under order of a 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.
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 Botswana and yet by that
not interfere with the freedom of movement of the mother. When the freedom of
the mother to enter Botswana to live and to leave when she wishes is indirectly
controlled by the location of the child, excluding the child from Botswana is
in effect excluding the mother from Botswana. If the exclusion is the result of
a determination of the child’s citizenship which is wrong, surely this would
amount to an interference with, and therefore an infringement of, the mother’s
freedom of movement.
But, then,
the argument goes, the respondent has not shown that there was any likelihood
of her non-Botswana children being kept out of Botswana. The answer to that is
that governments with a discretion to exercise do not always give advance
notice of how they intend to exercise that discretion. It is not unknown for a
government which decides to deport or expel an alien to do so without prior notice
of its intention. Must the person who is subject to, or may indirectly be
affected by, such expulsion wait until the expulsion order is made before he or
she can bring legal proceedings? When is he or she threatened with the
likelihood that an order could be made? To the question whether the immigration
officers in Botswana had a discretion to turn away an alien from entering the
country, the appellant’s reply was that they had.
The
appellant also put in an affidavit made by the immigration officers at the
Gabarone Airport with respect to the latest entry into Botswana of the
respondent’s husband and her non-citizen children. I believe this was intended
to refute allegations indicating various forms of harassment or inconveniences
that the respondent claimed the husband and children had suffered. I quote it
because it is educative. The senior immigration officer in charge of the
department’s affairs at the airport on the date of arrival deposed to the fact
that the respondent was known to her, and that at no time did the respondent
complain to her of any harassment or threats made to her family by the
immigration officers. She had consulted her officers, none of whom had any
recollection of the incident referred to by the respondent. Then she proceeded
to state the normal procedure followed by persons arriving at the airport. She
said:
When passengers arrive at Sir Seretse Khama Airport Botswana
passport holders are not required to fill in forms, but proceed straight
through the booth reserved for them to the immigration checkpoint, then on to
clear customs. In the case of visitors or returning residents holding foreign
passports, these fill in entry forms which they produce with their passports to
the immigration officers in the booths reserved for foreign passport holders.
If everything is in order they are given a green card which is presented at the
immigration checkpoint and they pass through to customs.
1
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
– either
(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 Botswana; or
(b) his passport is endorsed for a short
period to enable him to regularise his stay in Botswana.
(c)
The
latter is what appears to have happened to Mr Dow and his non-citizen 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.
Botswana
is entitled to deal with aliens in the manner described. The Constitution
allows it and international law and practice recognises it. The respondent in
the affidavit to which the senior immigration officer’s was in answer alleged
that she was in the company of her husband and her three children on that
occasion, all having arrived back from holiday. She and the eldest daughter,
the Botswana citizen, were granted unconditional entry into Botswana, while the
husband and her other two children were put through the alien treatment. The
senior immigration officer’s affidavit did not deny that the respondent and the
eldest daughter were also present at the time. It also, at least, confirmed
that different treatment was normally accorded to citizens and non-citizens.
The chief immigration officer also made an affidavit in answer to the
respondent’s. In it he said:
4. According to the file Mr Dow arrived in Botswana on 12
October 1977 as a United States Peace Corps Volunteer teacher. He remained exempted
from holding a residence permit as an employee of the Botswana Government until
21 January 1990. On 16 July 1990 Mr Dow submitted an application for a
residence permit for himself and his two younger children. While his
application was being processed, he continued his studies on the basis of three
months waivers, which is standard procedure in a case such as this. This was
the situation during December 1990/January 1991.
5. Mr Dow’s application was duly approved by the Immigration
Selection Board on 17 April 1991. After preparation of the permit, this was
despatched to the Dean of Students, University of Botswana on 29 May 1991,
marked ‘for Peter Nathan Dow’. It appears from the affidavit that Mr Dow did
not receive the permit, but merely continued having the waiver certificate in
his possession stamped every three months by his nearest immigration officer.
6. On 8 January 1992, at his request, a replacement permit
was issued to Mr Dow, including the two children and valid 17 April 1991 to 30
June 1992, when his course was to expire.
I do not
think I need comment on the disturbing experiences of a mother who finds
different and unfavourable treatment as to residence meted by authority to some
of her three children in comparison to others who are 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 Botswana. Chasing after the extensions itself
cannot be a matter of joy. The mother’s concern for permission for her children
to stay cannot be lightly dismissed on the ground that it was no business of
hers, the responsibility being the children’s father’s. Well-knit families do
not compartmentalise responsibilities that way. As long as the discretion lies
with the governmental authorities to decide whether or not to extend further
the residence permit of the husband, on whose stay in Botswana the stay of the
respondent’s children depend, the likelihood of the children’s sudden exhaustion
of their welcome in the country of their mother’s birth and citizenship is
real. Those with the power to grant the permission have the power to refuse.
Were they to be refused continued stay, not only the children’s position but
the mother’s enjoyment of life and her freedom of movement would be prejudiced.
It does seem to me not unreasonable that a citizen of Botswana should feel
resentful and aggrieved by a law which puts her in this invidious position as a
woman when that same law is not made to apply in the same manner to other
citizens, just because they are men. Equal treatment by the law irrespective of
sex has been denied her.
The
respondent has, 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 be barred from
entry into or thrown out of her own native country as aliens, her right to live
in Botswana would be limited. As a mother of young children she would have to
follow them. Her allegation of infringement of her rights under section 14 of
the Constitution by section 4 of the Citizenship Act seems to me to have
substance. The Court a quo, therefore, had no alternative but to hear
her on the merits.
The
appellant has argued that if even 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 5. 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 judgment on that.
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 of Harris v Minister of Interior 1952 (2)
SA 428 (A) at 456 where he says:
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. See Bryce’s American Constitution (3ed, volume 1 at 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. See Swart
NO and Nicol NO v De Kock and Garner 1951 (3) SA 589 at 606 (AD).
I expect
if there is indeed a vacuum, Parliament would advise itself as to how to meet
the situation.
The upshot
of this discourse is that in my judgment 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 sections 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 judgment 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 purposes of this decision. The
declaration of the Court a quo that sections 4 and 5 of the Citizenship
Act (Cape 01:01) are ultra vires the Constitution, is, accordingly,
varied by deleting the reference to section 5. Otherwise the appeal is
dismissed.
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
brothers if I say that we have indeed profited from, and enjoyed the manner of
presentation of their arguments.
Aguda JA
Introduction
I have had
the privilege of reading in draft the judgment of the Judge President just
delivered, and I agree with the conclusions reached in that judgment 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.
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 judgment intelligible and to make my views as clear
as I possibly can.
The
original application by the applicant at the High Court on 22 June 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.
On 7 March
1984, the respondent was lawfully married to a United States citizen by the
name of Peter Nathan Dow. As at the time of the application there were, and
indeed there continue to be, three children of the marriage. The first of these
was born on 29 October 1979, that is before both parties were lawfully married,
the second on 26 March 1985 and the third on 26 November 1987. As would be
expected the respondent cited the attorney-general of Botswana as the
respondent to the application. The attorney-general opposed the application,
and in a considered judgment, Horwitz AJ on 11 June 1991 found in favour of the
applicant and held that sections 4 and 5 of the Citizenship Act (Cap 01:01) are
ultra vires the Constitution of Botswana.
The legal
issues in dispute between the parties
It would
appear that in her original application the applicant had sought 9 orders
namely:
1. declaring section 4 of the
Citizenship Act ultra vires section 3 of the Constitution;
2. declaring section 5 of the Act ultra
vires section 3 of the Constitution;
3. declaring section 13 of the Act
ultra vires section 3 of the Constitution;
4. ordering and directing that
sections 4 and 5 of the Act be gender neutral;
5. ordering and directing that
section 13 of the Act be gender neutral;
6. declaring sections 4 and 5 and
13 of the Act ultra vires section 7 of the Constitution;
7. declaring sections 4, 5 and 13
of the act ultra vires section 14 of the Constitution;
8. declaring the two younger
children Botswana citizens notwithstanding any other citizenship they may have;
and
9. declaring the applicant’s
spouse to be entitled to make an application for naturalisation
However,
as I understand it the suit was fought almost entirely on the allegation that
section 4 and 5 of the Citizenship Act are ultra vires section 3 of the
Constitution and secondarily that they are also ultra vires sections 7
and 14 of the Constitution. AS there were 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.
Now the
relevant provisions of section 4 of the Act says–
A person born in Botswana shall be a citizen of Botswana by
birth and by descent if, at the time of his birth – (a) his father was a
citizen of Botswana; or (b) in the case of a person born out of wedlock, his
mother was a citizen of Botswana.
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 Botswana can pass his citizenship to his children
born in wedlock, she as a woman cannot do so. It is also her case that in these
circumstances she is being subjected to degrading treatment which is prohibited
by the Constitution, section 7, and that her right to freedom of movement as
enshrined under section 14 of the Constitution is also breached.
The
history of the Citizenship Act has been well set out in the judgment of the
Judge President and I need not repeat it here save to say that what I would
concern myself with is the Act 17 of 1984, now Cap 01:01 in respect of which
this action was brought. Now section 3 of the Constitution says:
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 for the public
interest to each and all of the following, namely – (a) life, liberty, security
of the person and the protection of the law
…
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.
The
Constitution then goes on in sections 4 to 15 to make provisions as regards the
protection of certain specific rights and certain derogations from each of such
protected rights.
Shorn of
all frills the case of the appellant is that section 4 of the Act is intra
vires the Constitution, since the Constitution by itself in section 15
permits the enactment 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 judgment. For now I would like to point out that
section 15 provides (inter alia) that –
(1) 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
…
(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.
The
appelant’s argument
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 limitation to
that power provided that such legislation is “for the peace, order and good
government of Botswana”. He argues further that section 4 of the Act is
concerned with the conferment of citizenship on children (of either sex). On
any natural interpretation of the words, the section is neither intended to,
nor has the effect of, subjecting women to any “disabilities or restrictions to
which men are not subjected”, nor, as the argument goes, does the “section
confer on men privileges or advantages which are not accorded to women”. Mr Kirby
then points out that –
The aim and effect of the sections (that is, 4 and 5) is not
to disadvantage any person but rather to seek to provide certainty of
citizenship, and achieving the practical objective that a child should acquire
initially the citizenship of his guardian (whatever his sex) whose domicile he
also acquires.
Finally on
this point the learned deputy attorney-general says that
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 section 15(4)(e).
Application
of section 15(4)(e) of the Constitution
I now find
it necessary to quote subsection (4)(e) of section 15 of the Constitution under
which the appellant seeks succour. The relevant part of that subsection (4)
reads as follows:
Subsection (1) of this section shall not apply to any law so
far as the law makes provision – … (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
those persons or to persons of any such description, is reasonably justifiable
in a democratic society.
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 subsection (3) of section 15, because the
word “sex” is omitted from the wording of the subsection. I find it difficult
to understand how he can at the same time seek succour under subsection (4) which
is only referable to persons of the description mentioned in subsection (3).
And in 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.
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.
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 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.
Canons of
constitutional construction
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 v S (1984) BLR 14, at 34 to 35. Here I wish to refer in
particular to what White J of the Supreme Court of the United States said in South
Dakota v North Carolina (1904) 192 US 268 48 L ED 448 at 465 thus:
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 great purpose of the instrument.
I would
also wish to refer once again to what Sir Udo Udoma of the Supreme Court of Nigeria
said in Nafiu Rabiu v S (1981) 2 NCLR 293 at 326 thus:
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.
And in Ifezu
v Mbadugha (1984) 1 SC NLR 427; 5 SC 79, Bello JSC put the matter thus:
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 disjointly
. . . 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.
To these I
would like to add the very important voice of Lord Diplock in Attorney-General
of the Gambia v Jobe (1985) LRC (Const) 556 PC at 565 thus:
A constitution and in particular that part of it which
protects and entrenches fundamental rights and freedoms to which all persons in
the State are to be entitled, is to be given a generous and purposive construction.
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 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.
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 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 overriding
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.
Status of
customary law and the common law
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 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 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
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 Justice of the Supreme Court said (at 180 of the report):
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 person in Nigeria . . .
Accordingly, where the determination of the civil rights and obligations of a
person is in issue, any law which imposes conditions inconsistent with the free
and unrestrained exercise of that right is void to the extent of such
inconsistency. Thus the restriction imposed at common law on the right of
action in public nuisance is inconsistent with the provisions . . .
of the Constitution, and to that extent void.
And
Kentridge JA made this same point in Attorney-General v Moagi 1982 BLR
(II) 124 when he said at 184– “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.”
Status of
section 3 of the Constitution
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 judgment 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 overriding 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 sections 3 to 16 has been, is being or is likely to be
contravened in relation to him.
At this
juncture I would wish to point out that section 1 of the Constitution says that
Botswana is “a sovereign republic” whilst section 2 deals with the “public
seal”. The very next section is section 3 which deals with “fundamental rights
and freedom of the individual” which in my view suggests that it is a provision
of extreme importance. It seems clear therefore that the construction of any section
of the Constitution must begin from the premises that “every person in Botswana
is entitled to the fundamental rights and freedoms of the individual” including
the right to life, to liberty, to the security of his person and to the
protection of the law. In parenthesis the learned deputy attorney-general
agreed quite correctly in my view that the last five words should read “the
equal protection of the law”. If one looks at the issue along these lines, the
inevitable conclusion that the mere omission of the word “sex” from the
provision of section 15(3) of the Constitution cannot be held to limit the
fundamental rights and freedoms of the individual entrenched in section 3,
seems to me inevitable. The learned Judge President has dealt so exhaustively with
this matter in his judgment that it will be a futile exercise on my part were I
to attempt to proceed at any further examination of it.
The status
of international treaties, agreements, conventions, protocols, resolutions
etcetera
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 and those
times, namely, slavery, can no longer be permitted or even tolerated, more so
by the law.
At this
juncture I wish to take judicial notice of that which is known the world over
that Botswana is one of the few countries in Africa where liberal democracy has
taken root. It seems clear to me that all the three arms of the government –
the legislative, the executive and the judiciary – must strive to make it
remain so except to any extent as may be prohibited by the Constitution in
clear terms. It seems clear to me that in so striving we cannot afford to be
immuned from the progressive movements going on around us in other liberal and
not so liberal democracies such movements manifesting themselves in
international agreements, treaties, resolutions, protocols and other similar
understandings as well as in the respectable and respected voices of our other
learned brethren in the performance of their adjudicatory roles in other
jurisdictions. Mr Browde SC, counsel for the respondent, referred us to
the words of Earl Warren CJ of the United States, when he said in Trop v
Dulles 356 US 86 that – “The provisions of the Constitution are not time
worn adages or hollow shibboleths. They are vital, living principles that
authorise and limit government powers in our nation.”
Learned
counsel also pointed out what Mohamed AJA 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 (Nm) as regards the question of corporal
punishment, thus
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.
Now in the
report of a judicial colloquium held in Banglore, Pakistan on 24 February 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 78 of the
report):
. . . 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 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.
At the
same colloquium the Chief Justice of Pakistan, Humammad Heleen CJ, voiced his
own opinion thus (at 101 to 103 of the report):
A state has an obligation to make its municipal law conform
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 state’s international obligations
. . .
The domestic application of human rights norms is now
regarded as a basis for implementing constitutional 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.
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.
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-à-vis their domestic laws, many of them have since the past
two decades or so begun to have a rethink. 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
Scarman in Attorney-General v British Broadcasting Corporation (1981) AC
303 at 354 HL said: “Yet there is a presumption, albeit rebuttable that our
municipal law will be consistent with our international obligations.”
And in Schering
Chemicals Ltd v Falkman Ltd (1982) QB at 18; (1981) 2 All ER 321 (CA) Lord Denning MR
said of the law of England that – “I take it that our law should conform so far
as possible with the provisions of the European Convention on human rights.”
England
has no written constitution and the rather cautious but clearly progressive
approach of these great Judges of that country must be understood in that
light. We have a written constitution, and if there are two possible ways of
interpreting that constitution or any of the laws enacted under it, one of
which obliges our country to act contrary to its international undertakings and
the other obliges our country to conform with such undertaking, then the courts
should give their authority to the latter.
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
woman which was adopted by the general assembly of the United Nations GA Res
34/180 on 18 December 1979 by a vote of 130-0, and which came into effect on 3
December 1981. 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 rights 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”.
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.
I take
judicial notice that Botswana is an important member of the Organisation of
African Unity (the OAU). We were informed by the deputy attorney-general that
she has ratified the African Charter on Human and Peoples’ Rights which were
adopted on 27 June 1981 by members of the OAU. Indeed the published document
itself shows that Botswana was among the 35 states that had ratified it by 1
January 1988. I need quote only two of its 68 articles. Article 2 says that -
Every individual shall be entitled to the enjoyment of the
rights 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.
And
article 3 says:
1. Every individual shall be equal before the law.
2. Every individual shall be entitled to equal
protection of the law.
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 2 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.
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 (1989) LRC (Const) 928 at 939 thus:
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. See for example Van Gorkom v Attorney-General (1977) 1
NZLR 535 where the treaty had not been acceded to by New Zealand.
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 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 etcetera 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 29 November 1959, which says that the child shall –
“Wherever possible grow in the care and under the responsibility of his parents
. . .” and that – “a child of tender years shall not, save in
exceptional circumstances, be separated from the mother.”
Another
example is United Nations general assembly declaration on the elimination of
discrimination against women passed on 7 September 1967, to the effect
that “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.”
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 -
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.
In my view
there is clear obligation on this country like on all other African states
signatories to the charter to ensure the elimination 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 on 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 laws in contravention of its international
undertakings and obligations under those regimes. Therefore the Courts must
interpret domestic statutory laws in a way as is compatible 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.
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 it is hereby declared null
and void.
Relevance
of other sex discriminatory statutes
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.
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.
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 Estates Act, Cap 31:01, section 28(5) the administration can
be granted to a woman only with the husband’s consent; that under the Deeds
Registry Act, Cap 33:02, section 18(4), immovable property cannot be registered
in the name of a woman married in community of property; and that under the
Companies Act Cape 42:01 such a woman can be a 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
judgment, I do hold that the learned trial Judge was right in holding that
section 4 of the Citizenship Act is ultra vires the Constitution.
Locus
standi
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 arguments of the learned deputy attorney-general in this regard
are not only attractive, but superficially plausible. Again my learned brother
the Judge President has dealt with this matter, and I fully and respectfully
accept and embrace his views and the conclusions reached by him.
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
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.
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 is 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 has never been
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 submit that
The principle of our law is that 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.
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 misapplied and, in any event, inappropriate for a
determination of the present issue. “They are 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 then
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 v Colonial
Treasurer 1910 TS 372: Director of Education, Transvaal v McCagie
1918 AD 621; Veriava v President of the South African Medical and Dental
Council 1985 (2) SA 293;(T) and Cabinet of the Transitional Government
of South West Africa v Eins 1988 (3) SA 369 AD.
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 Botswana where they have made their
home. This breaches her right not to be subjected to inhuman or degrading
treatment.
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 things which do not
concern him” (in the words of Lord Denning in R v Greater London Council, ex
parte Blackburn (1976) 1 WLR 550 at 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 (UK) Limited (1975) 1
WLR 186 at 190, “just for the pleasure of interfering, or proclaiming abroad
some favourable doctrine of theirs, or 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”.
It is
perhaps essential at this stage to say that in Great Britain where there is no
written constitution, there has not been a statute directly giving power to the
judiciary to review any act of the legislature, that is, 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
United States of America nor that of Australia contains any provision similar
to that of section 18 of the Constitution of Botswana. It is perhaps needless
to say that no such provision exists in the law of the Republic of South
Africa.
In her
classical book titled Locus Standi and Judicial Review Dr Thio observed
that:
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 confining 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?
I would
say that in the case of Botswana this distinction is obviously uncalled for.
The judiciary is charged with both functions as its primary role, one being
correlative to the other. The judiciary in this country has one of its primary
functions the responsibility of confining both the legislature and the
executive within the powers allotted to them under the Constitution. However,
it has another primary function, perhaps not less important for the maintenance
of peace, order and good government namely, the protection of private
individuals from illegal encroachments of their individual rights by either the
legislature or the executive.
In order
to give to 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.
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 I 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 9 February 1992, admitted by consent in
theses proceedings, the respondent allege that her husband and her two young
children were on 8 January 1992 granted a residence permit to reside in
Botswana till 30 June 1992. It is clear from this that the respondent’s two
young children will thereafter be subject to expulsion from Botswana, away from
their mother and away from the only place they have regarded as their home.
Short of expressly saying the obvious, in his reply affidavit sworn on 13
February 1992, the chief immigration officer admitted that “a replacement
permit was issued to Mr Dow, including the two children and valid from 17 April
1991 to 30 June 1992, when his course (of study in the University of Botswana)
was to expire”. In my view it is too artificial and unnatural to hold that in
these circumstances the respondent’s rights not to be subject to inhuman and
degrading treatment, and her right to free movement within and into and out of
Botswana have not been breached. If she travels out of the country with her
husband and the children, the two children concerned, 5 and 3 years old and her
husband may be refused admission. In that circumstance she must feel, rightly,
that she has been subjected to both inhuman and degrading treatment. In my view
she needs not suffer this sort of treatment before she can approach the Court
under section 18 of the Constitution. She is entitled to come to Court once it
is possible for her to allege upon sufficient grounds – as the founding
affidavit has shown – that she was likely to be subjected to such a treatment.
In all
these circumstances there can be no doubt that the respondent has the locus
standi to bring this action.
I would
therefore for the reasons to 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.
Bizos JA
I concur
in the judgment of the Judge President and the proposed orders to be made
dismissing the appeal from the judgment of Horwitz AJ. I agree with the reasons
advanced by the Judge President.
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.
I accept
that could not be seriously disputed by the appellant that the Citizenship Act
1984 is discriminatory. Section 4 deprives her two minor children of automatic
citizenship of Botswana despite the fact that they were born in Botswana to
her, a Motswana citizen by birth and her husband a citizen of the United States
of America. The children would have been Botswana citizens if their father was a
Motswana irrespective of the citizenship of their mother.
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 15(3) of the Constitution, gender
discriminatory legislation against women is permitted in Botswana because it is
a patrilineal and male orientated society.
The
appellant’s submission ignores the clear and unambiguous words in section 3 of
the Constitution.
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
. . .
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.
Section 18
of the Constitution provides: “. . . 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
. . .”
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.
The
appellant’s argument that section 3 merely recorded a fact is inconsistent with
his submission that Botswana was a patrilineal and male orientated society. It
would mean that an unwarranted statement of fact was enshrined in the opening
words of Botswana’s Constitution at the time of the country’s birth. I cannot
credit the makers of the Constitution with such an intent.
I
respectfully agree with the dicta of Maisels JP, Aguda JA and Kentridge
JA in Attorney-General v Moagi 1981 BRLI and Petrus v S 1984 BLR
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 judgments of the Judge President and Aguda
JA in this case. I find it unnecessary to repeat them. The full bench judgment
of Berker CJ, Mohamed AJA and Dumbutshena AJA in Minister of Defence Namibia
v Mwandinghi 1992 (2) SA 355 (Nm) and the cases therein cited provide
further support for the approach to be adopted.
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 judgments this Court has sought guidance in the past.
What has
become known as Lord Wensleydale’s “Golden Rule” was enunciated in Grey v
Pearson 6 HLC 106:
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 to 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.
Solomon JA
in Dadoo Ltd v Krugersdorp Municipal Council 1920 AD 530 at 554 said:
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 to the language of the legislature, but also to its object
and policy as gathered from a comparison of its several parts, 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 intention 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.)
In Attorney-General
Tvl v Additional Magistrate for Johannesburg 1924 AD, 421 at 436 Kotze JA
relying on English law said:
A statute says Cockburn CJ, ‘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 Oxford (4 QBD at 261). To hold
certain words occurring in a section of an Act of Parliament as insensible, and
has having been inserted through inadvertence or error, is only permissible as
a last resort. It is, is in the language of Erle CJ ‘The ultima ratio,
when an absurdity would follow from giving effect to the words as they stand’.
In Ditcher
v Denison 11 Moore PC 325 at 357 it is said, the Privy Council advised:
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.
In Wellworths
Bazaars Ltd v Chandlers Ltd 1947 (2) SA 37 (A) Davis JA at 43 said:
“. . . a Court should be slow to come to the conclusion that the
words are tautologous or superfluous.”
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 different treatment to
different persons on the grounds of race, tribe, place of origin, political
opinions, colour or creed is deemed to be discriminatory.
I cannot
ignore that the word “sex” appears in section 3. I can find no necessity nor
any sound reason for doing so.
As Solomon
JA said in Dadoo’s case (supra) we must also have regard to the
object, politic history and circumstances applicable to the subject matter of
the statute we have to interpret.
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) v Fisher 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 determination and self government.
The
African Human and People’s Charter and other continental and regional charters
and declarations followed.
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 mean “men only” nor men and women
of a certain colour. Women over 30 in the United Kingdom got the vote in 1918.
Most democratic countries followed. The view of Aristotle and Jean-Jacques
Rosseau that women were not fit to make decisions that affect the common good
beyond the family was no longer considered good dogma. The claimed right of men
that expected women to nurture their male children to virtuous citizenship,
that they themselves and their daughters were never to enter, was challenged.
Amongst the world’s nations (except a small number of notable exceptions that
refused to subscribe to the Universal Declaration) discrimination on the
grounds of race and sex became equally heretical.
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.
The
adoption of the Constitution of sovereign Botswana emerging from colonial rule
was obviously done with the lofty principles enshrined in the charters and
declarations. The Constitution unequivocally declares in section 3 that the
fundamental rights and freedoms of the individual whatever his or her race or
sex shall be enjoyed subject only to certain stated limitations designed not to
prejudice the enjoyment of those rights by others.
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 to one seriously contended that the word “person” and
“people” did not mean both men and women.
The rights
referred to in section 3 and under what circumstances exceptions to their
exercise are set out in greater detail in sections 4 to 14. Sections 15 and 18
have been set out discussed and interpreted by the Judge President. Section 16
and 18 deal with what is to happen when Botswana is at war or when the
President has declared a state of emergency in terms of section 17. Section 19
is a definition section in relation to the matters contained in Chapter 2 of
the Constitution which is headed “Protection of fundamental rights and freedoms
of the individual”.
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 2 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 4. 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.
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 office 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.
Mr Kirby
in an able and well researched argument submitted that one of the reasons why
the Constitution should be interpreted as allowing gender discrimination
against women to quote his words “the whole fabric of the customary law in
Botswana, is based upon a 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 a 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.
The
argument taken to its logical conclusion would mean that although the makers of
the Constitution provided that a woman could 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 15(3) of the
Constitution despite what was declared in section 3.
The makers
of the Constitution were well aware that provision would have to be made for
the laws of the country and expressly provided in section 15(9) that:
Nothing contained in or done under the authority of any law
shall be held to be inconsistent with the provisions of this section– (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 (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 Constitution.
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 out 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 out in subsections (4), (5), (6),
(7) and (8) of section 15 and sections 16 and 17 deal with a state of
emergency.
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 Botswana in order to preserve the
patrilineal and male orientated society? Having gone to so much trouble to
expressly enumerate so many exceptions, they would hardly have been content to
express their intention in so elusive a manner by omitting the word “sex” from
section 15(3) and hope that their intention would be discovered by the application
of the rule of construction expressio unius exclusio alterius.
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 not be 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.
Mr Kirby
in reply to Mr Browde’s able argument relying on judgments 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 than 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
Botswana. What he no doubt meant was that we should have regard to the
traditional culture of Botswana which he says is a patrilineal and male
orientated society. Botswana was not alone in this male orientated tradition.
For no other reason than being a woman a Viscountess was precluded from taking
her position in the House of Lords. See The Claim of Viscountess Rhondda
(1922) 2 AC 339. Some fifty years later Lady Thatcher could not only take her
place in the House of Lords but had been thrice elected as Prime Minister of
Britain. 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.
In
relation to the protection of personal and political rights the primary
instrument to determine the heartbeat of Botswana is its Constitution. In my
judgment the passing of any law which clearly makes provision that is
discriminatory either of itself or in its effect cannot stand. The effect of
section 4 of the Citizenship Act is to discriminate against the respondent
whose children are deprived of Botswana citizenship even though they were born
in Botswana. This could not be done by the legislature in view of the provisions
of sections 3, 14 and 15 of the Constitution.
In my view
there is no substance in the submission that the applicant does not have locus
standi in relation to her children.
The Judge
President has referred to the cases dealing with locus standi in
Roman-Dutch law and more particularly Wood v Odangwa Tribal Authority 1975
(2) SA 294 (A). I agree with this conclusion. The matter was considered further
in Jacobs v Waks 1992 (1) 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 f 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’s 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 Khutson 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 v Jacobs 1990 (1) SA 913 (T) at 918F-I. However, Botha
JA with whom Corbett CJ and Smallberger, Milne and Nienaber JJA concurring,
held in the Court of Appeal that he did have locus standi because his
dignity had been affected 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.
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 Botswana.
Schreiner
JA
I do not
intend to set out details of the notice of motion and affidavits in this matter
because they appear from the judgment of the learned Judge President. This will
be a minority judgment and, consistent with its status, I will make it
relatively short.
Introduction
The
Constitution of Botswana followed upon, and was necessary for, the independence
of the country from the control of the United Kingdom. It established a
governmental and administrative structure for the new country. It was designed
not only for the immediate, but also the more distant, future as a governing
document having a measure of rigidity but also capable of being altered by
procedures which would afford an opportunity for the members of parliament and
sometimes the people of Botswana to give due consideration to changes. Because
it was a new sovereign State, there had to be provisions for citizenship and
these were embodied in the first instance, in Chapter 3 of the Constitution.
The systems of Roman-Dutch law and customary law which, until independence, had
prevailed in the Bechuanaland Protectorate are not mentioned in the
Constitution and the social mores of the various groups of inhabitants
of the country were presumably intended to continue unaffected by independence
save to the extent that changes were specifically provided for in the
Constitution.
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 30 days before its introduction (subsection (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 (subsection (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 (subsection (4)). The
provisions concerning citizenship in Chapter 3 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 2 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 these 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.
Interpretation
of constitutional provisions
There are dicta
in judgments 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 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 2, 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.
In a
recent decision of the Supreme Court of Namibia, Minister of Defence,
Namibia v Mwandinghi 1992 (2) SA 355 (Nm), 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.
Sometimes
the words 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 conventional interpretation is illustrated by Minister of
Home Affairs 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, Namibia:
In re Corporal Punishment 1991 (3) SA 76 (Nm), Petrus v S (1984) 1
BLR 14 and S v Nkubi 1988 (2) SA 702 (Z) which deal with the vexed
question of corporal punishment. There are many other cases referred to in
these authorities which deal with the same subject and together they show a
growing distaste on the part of the courts in recent years to the imposition of
corporal punishment and, where there is a constitution outlawing cruel and
inhuman punishment or degrading treatment, declaring that legislatures are
wholly or partially precluded from passing legislation imposing corporal
punishment. Here, and no doubt in many other cases, the effect of words having
a meaning which to some extent vary with the mores of the time must
influence the Court and so one gets the notion of a constitution being adapted
by the Courts to the needs of a changing society. Whichever way is it framed,
the idea of the so-called changing constitution must be limited to the area of
changing moralities affecting the ambit of the content of words. This must be
narrow indeed.
The
liberal, generous and non-literal, non-technical approach to human rights
legislation is dictated by its nature and purpose and is justified on this
ground, but it is not to be taken as permission to Courts to cease always to
seek the intention 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 no right 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.
Citizenship
legislation
Independence
was accorded to the former Bechuanaland Protectorate as from 30 September 1966
(“the appointed day”) and the area became a Republic under the name of Botswana
(Botswana Independence Act 1966, 14 and 15 Eliz Chapter 23, section 1). Section
3(3) of the United Kingdom Act provided that, except as provided by section 4,
any person who, immediately before the appointed day, was a citizen of the
United Kingdom and Colonies should, on that day, cease to be such a citizen if
he became on that day a Botswana citizen. Section 4 dealt with certain cases
where citizenship of the United Kingdom and Colonies was retained. Overall, the
right to retain citizenship of the United Kingdom and Colonies was to be
determined patrilineally. A woman who was married to a citizen of the United
Kingdom and Colonies did not cease to be such unless her husband did so.
It was
necessary by reason of the change in status of the area which is now Botswana
for Parliament to introduce legislation creating a citizenship of Botswana and
Chapter 3 of the Constitution did so. Sections 20 to 25 dealt with citizenship
of Botswana and, in those situations in which parentage was 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 Botswana citizenship any citizenship of another country had to be
renounced at a certain stage.
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 2 of the Constitution, Chapter 3, 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.
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 that Chapter 2 of the
Constitution was not intended to contain provisions which prohibited
discrimination against women. I did not hear any real answer to that point.
However, if the wording of Chapter 2 compels a construction which does give
rise to such an anomalous situation, this construction must prevail
notwithstanding the anomaly.
The
Citizenship Act was assented to on 31 December 1982 and has been amended. The
two sections to which the respondent now takes objection are as follows:
4(1) A person born in Botswana shall be a citizen
of Botswana by birth and descent, if at the time of his birth – (a) his father
was a citizen of Botswana; or (b) in the case of a person born out of wedlock
his mother was a citizen of Botswana.
5(1) A person born outside Botswana shall be a citizen
of Botswana by descent if, at the time of his birth – (a) his father was a
citizen of Botswana; (b) in the case of a person born out of wedlock, his
mother was a citizen of Botswana
Locus
standi
There was
some debate concerning the locus standi of the respondent to bring the
present proceedings especially in regard to the declaration concerning section
5. None of the children of the respondent was born outside Botswana and there
was no suggestion that further children would be born outside this country.
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, 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 the right to
bring it.
However,
this should not be regarded as a licence 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.
Section 3
Fundamental
to the problem of the structure of Chapter 2 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.
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 sections 4 to 15 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 of 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; for as much as, inasmuch as (chiefly, now only, introducing a preamble or
recital in a formal document) . . .”
If the
section had been intended by itself to be a right-creating provision, it would
have read: “Every person in Botswana is entitled to the fundamental rights and
freedoms of the individual . . .” The rest of the section is not
consistent with this approach. It says: “. . . 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 . . .” (my emphasis). This, in my view,
is a clear expression of the intention that the rights and freedoms to which an
individual is entitled are to be found in the specific provision of the
following sections in the Chapter. The words “the provisions of this Chapter
shall have effect” mean the other provisions 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.
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 specifically within the more detailed provisions of sections
4 to 15. In my view, section 3 does not create specific rights and freedoms
which do not fall within those declared and enacted in detail in the later
sections of Chapter 2. 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.
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, 5ed at 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 Ernest 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 commands. 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 freedoms 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 not 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.
Section 15
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 among the
various rights and freedoms to be found in Chapter 2 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 (subsection (1) and discriminatory treatment (subsection (2)).
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 subsection (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 context
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 contained in
subsection (3) may be applied when construing section 15.
“Discriminatory”
in terms of subsection (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 any mention of discrimination on
the grounds of sex, the definition must be read 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 Eton
College v Minister of Agriculture, Fisheries and Foods (1964) 1 Ch 274 at
280. There might have been more substance in this argument if it could be shown
that section 3 had something to do with the absence of discrimination as a
separate right or freedom. But the rights and freedoms of sub-paragraphs (a),
(b) and (c) of section 3 do not include a right not to be discriminated
against. Any possible uncertainty appears in the preamble and not in section
15(3). The first possibility which was put forward was that the list of descriptions
of categories of persons in subsection (3) of section 15 is intended only to be
illustrative and that the Court is at liberty to add to those descriptions that
of sex. This can be done in two ways. Either the categories of persons
mentioned in section 3 can be included in the definition of any category of
persons which the Court may from time to time think should not be discriminated
against may be included in the definition provided that the category is ejusdem
generis with those expressly listed. An intention to repeat in section
15(3) the categories of section 3 can hardly be inferred when section 15(3)
introduced the category of “tribe” which is not 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.
Thus the
idea that the list of descriptions of persons in subsection (3) of section 15
is not exhaustive must be rejected.
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 subsection (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.
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 v S (1984) BLR 14 where reference is
made to Prof Schapera’s A Handbook of Tswana Law and Custom and also
Major ESB Tagart’s Report on Conditions existing among the Masarwa in the
Bamangwato Reserve). In the present case, the State called in aid the
Restatement of African Law 5 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 Botswana people
generally to discrimination on the ground of sex, this Court can make a
positive finding that the majority of persons in this country have any decided
view on the question. It is not for us to speculate or to express our own view
on that subject even though section 7 of the Common Law and Customary Law Act
(Chapter 16:10) given the Court the widest of powers in the ascertaining the
existence or content of customary law.
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 ground of sex
was not outlawed.
Subsection
(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 3 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
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.
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.
Sections 5
and 7
I now deal
with certain other provisions of Chapter 2 because it s been suggested that, even
if they are not “discriminatory” within the definition of that term in
subsection (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.
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.
In certain
situations there may well be a very real limitation upon the options open to a
woman who is a Botswana citizen but whose children are not. The same would
apply where a father, who is not a Botswana citizen, has children born out of
wedlock as a result of which the mother’s citizenship is the criterion.
Is this a
deprivation of “personal liberty” as contemplated by section 5(1) of the
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 various
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 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.
Section 7
prohibits, inter alia, “degrading treatment”, and it is suggested that
the mother of children who are not Botswana citizens is subjected to degrading
treatment because of the procedures at points of entry to and exit from
Botswana and the requirements of Immigration Act regarding residence permits
for her children. It is no doubt correct that immigration officials may, if not
properly trained and supervised, act towards members of the public in a
high-handed and obstructive manner. This behaviour carried to extremes may well
have the effect of subjecting a member of the public to degrading treatment.
Such conduct may even justify, in appropriate circumstances, legal proceedings
for a declaration that the constitutional rights of the victim of such
treatment have been infringed. But we are here concerned only with the
Citizenship Act and what is done in terms of Act. Unless its provisions
necessarily involve the imposition of degrading treatment, it cannot be held to
be ultra vires the Constitution. The respondent is seeking to have
sections 4 and 5 of the Citizenship Act declared null and void not particular
conduct under that Act interdicted. I do not think, therefore, that sections 4
and 5 of the Citizenship Act are rendered a nullity by any provision in
sections 4 to 14 of the Constitution.
Conclusion
In my view
the provisions of sections 4 and 5 of the Citizenship Act are not ultra
vires Chapter 2 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 Appeal Court.
Puckrin JA
I have
read the judgments 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 views
will not be considered unduly contumacious, and, second, because I have great
personal sympathy for the aspirations of the respondent in this case, Ms 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 would, in my respectful view, permit this Court to become the overlord
of the Constitution rather than its guardian. I agree entirely with the rations
and conclusion reached by my brother Schreiner JA, and in order to avoid
prolixity I shall not repeat in this judgment anything stated by him. I do,
however, wish to deal briefly with certain philosophical questions relating to
the interpretation of constitutions.
It is
correct that Government, the Court and citizens should pay obeisance to the
Constitution of the land. In order to emphasise 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 ciphers 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 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.
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 is pointed out by Gray in Nature and Sources
of Law, 2ed at 170 to 171:
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.
In a sense
therefore, all law is judge-made law and the shape in which a 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 a 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 JA in his judgment in this court in Attorney-General v Moagi
(1981) BLR 1 at 32 where he stated the following:
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
emphasis.)
Thus, if
the language of a constitution permits of only one interpretation, then it is
that interpretation which must be 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 Rights – the
Canadian Experience since 1982. I adumbrate the schools hereunder:
1. The
“Framer’s Intent” school of interpretation
An
influential school of American scholars believes that he 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.
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 v Sandford 19 How 393 (1857).
In this
case the Court was asked to determine whether blacks were American citizens within
the meaning of the Constitution. Taney CJ concluded:
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.
Dred Scott (supra)
at 404 to 405.
There
seems to me little doubt that the sentiment expressed by Holmes J in Missouri
v 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.
Indeed,
this Court has recognised this expressly in the judgment of Aguda J in Petrus
v S (1984) BLR 14 as follows:
. . . (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 to apply to the varying conditions which the
development of our several communities must involve . . .
2. The
‘living tree’ metaphor
The
metaphor was first used by Lord Sankey in the case of Edwards v The
Attorney-General of Canada (1930) AC 124 (PC)
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 Council 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”.
Ibid at 136
Madame Justice Bertha Wilson op cit states the following:
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.
I would
heartily endorse the views expressed above by Madam 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
3.
Purposive interpretation
In recent
years the House of Lords, (and particularly Lord Diplock) has emphasised 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. See Attorney-General of
the Gambia v Momodou Jobe (1984) 3 WLR 174 at 183; Societe United Docks
v Government of Mauritius (1985) LRC (Const) 801 at 844; Catnic
Components Ltd v Hill & Smith Ltd (1982) RPC 183 (HL). Once again I
quote from Madam Justice Bertha Wilson, op cit:
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.
In her
judgment in R v Morgentaler (1988) 1 SCR 30 the same Judge expresses
herself as follows:
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.
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 or right under debate.
In my view
a purposive construction of a constitution is the correct means if
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 therefor 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.
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 section 15 thereof, does not
preclude the legislature from enacting a statute which provides that
citizenship shall pass in a patrilineal but not matrilineal fashion. In my
view, for the reasons set out in my brother Schreiner JA’s judgment, the
provisions of section 15 of the Constitution are clear and it is not necessary
to invoke such extraneous aids to interpretation as
Accordingly
I would allow the appeal.
For the
appellant:
IS Kirby
and Miss B Maripe
For the
respondent:
Adv J