Reforming the Right to Property: How Botswana’s Progressive Judiciary Helps Lift Women Out of Poverty
March 26, 2020 by Benjamin Kamelhar
by Rachel Lesser
While Botswana has long been a patriarchal society, it may be surprising that the majority of households are actually headed by women. Unfortunately, occupants of female-headed households are also more likely to be living in poverty. This disproportionate likelihood of suffering from poverty stems from their society’s entrenched patriarchal beliefs, which have been reinforced by the country’s legal system.
A constellation of factors are responsible for keeping female-headed households more impoverished than their male counterparts: lower salaries, an inability to get bank loans, and stereotypes about the traditional role of women. Women’s inability to own and inherit property in the same way as men is at the root of these issues.
Customary practices of tribal society predating British colonial rule favor the man as the breadwinner, head of the household, property owner, and administrator of the estate. Like many other post-colonial African nations, Botswana still retains a dual legal system. There is a system of customary laws, unique to each village and administered by each tribal leader, or kgosi, in his or her customary court, or kgotla. And then, there is the common law, grounded in Roman-Dutch law and English common law principles. These two systems overlap to create the network of laws under which Botswana citizens live; but, unfortunately, they are often in conflict.
For example, the Abolition of Marital Power Act takes the much-lauded step of abolishing the status of the man as the head of the household. Previously, a man had the sole authority to administer the estate and could sell joint property without the consent of his wife, because he had “marital power” over his wife and her property. Unfortunately, the Abolition of Marital Power Act has a gaping hole. It exempts customary laws. In an attempt to protect traditional practices, this loophole instead preserves discrimination and guarantees that there will be women who are unable to lift themselves out of poverty. It stigmatizes women by maintaining the traditional division of roles between husband and wife and implies that women are inferior to men and incapable of managing their own affairs.
In the peri-urban village of Tlwokeng, recent urbanization and modernization have “redefined [customary] inheritance rules [and] have enabled women access to land and housing more readily than in the past.” However, it is not the situation in every village or city that customary laws do not discriminate against women.
While these laws remain unchanged, Botswana’s highest courts have nonetheless announced decisions that recognize men and women as equal before the law and affirm that property ownership and inheritance are central to independence and upward mobility.
The trend of the judiciary championing equal rights for men and women began with the landmark case of Attorney-General v. Unity Dow in 1992. The Court of Appeals unequivocally rejected the argument that “discrimination on grounds of sex was permissible in Botswana society as the society was patrilineal, and therefore, male-oriented.” Eleven years later, the judiciary declared that not only is Botswana society not male-oriented, but it is not exclusively patrilineal either and held that women may not be barred from inheriting their deceased parents’ family homestead under Ngwaketse customary law.
Since then, the judiciary has reinforced the concept that women have an equal right to own, inherit, and administer property. The High Court reaffirmed that children born out of wedlock, whether male or female, have equal entitlement to their deceased father’s estate. In response to the increasingly common situation where women and men cohabitate, but do not get married, the courts have held that if a lengthy “universal partnership” can be proven, a woman’s partner cannot “lawfully sell the property without her approval, notwithstanding that the certificate of title was in his name.” When seeking to divide the assets after the end of a couple’s universal partnership, the High Court noted that the woman was “responsible and industrious” and by working for her partner, she had “greatly diminished” any prospects she had of “securing a long term and pensionable job.” The High Court then concluded that the assets should be divided equally, because “allowing [the woman] to go with nothing would amount to giving her the shorter end of the stick, and that would amount to great injustice.”
By ordering an equitable division of assets upon dissolution of marriage (or a partnership) or death of a parent, the judiciary secures women’s right to property, and by extension, allows women to benefit from owning property. For example, real property may be used as collateral for a bank loan, permitting female heads of households to provide for their dependents or start a small business.
Parliament may eventually choose to codify these progressive trends and signal to all Batswana women that the government intends to protect and recognize their equal right to own and inherit property. But until then, the judiciary has shown itself more than willing to fill that void.
 Bots. Council of Non-Governmental Orgs. [BOCONGO], Bots. NGOs Shadow Report to CEDAW: The Implementation of CEDAW 40 (U.N. Convention on the Elimination of Discrimination Against Women Oct. 2009), https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/BWA/INT_CEDAW_NGO_BWA_45_8212_E.pdf.
 U.N. Comm. on the Elimination of Discrimination Against Women, General recommendation on article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women (Economic consequences of marriage, family relations and their dissolution), ¶ 4, U.N. Doc. CEDAW/C/GC/29 (Oct. 30, 2013), https://www2.ohchr.org/english/bodies/cedaw/docs/comments/cedaw-c-52-wp-1_en.pdf.
 BOCONGO, supra note 1, at 45.
 Faustin Kalabamu, Women’s Inclusion and Exclusion from Property Ownership in Botswana 3 (6th N-Aerus Conf., Hous. Dev. & Mgmt., Lund Inst. of Tech., Lund Univ., Draft 1, Sept. 16-17, 2005), http://n-aerus.net/web/sat/workshops/2005/papers/29.pdf.
 U.N. Committee on the Elimination of Discrimination Against Women, 45th Sess., 921st Mtg. ¶ 41, U.N. Doc. CEDAW/C/SR.921 (Jul. 7, 2010), https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CEDAW%2fC%2fSR.921&Lang=en.
 Philomena Apiko & Tlasetso Palime, Customary Law and its Impact on Women’s Rights, Children’s Rights and LGBTI-People in Southern Africa – the Botswana Example 2 (Dishtanwelo, ed., Friedrich Nauman-Stiftung für die Freiheit 2013).
 Abolition of Marital Power Act, §§ 4, 5, 9, Cap. 29:07 (2005) (Bots.).
 Id. § 3.
 Fuastin Tirwirukwa Kalabamu, Towards egalitarian inheritance rights in Botswana: the case of Tlokweng, Vol. 26, No. 2 Dev. S. Africa 222 (June 2009), https://ohrh.law.ox.ac.uk/wordpress/wp-content/uploads/2015/07/OxHRH-Working-Paper-Series-Number-6-Masengu1.pdf.
 See, e.g., Matrimonial Causes Act, § 3, Cap. 29:06 (2008), Married Persons Property Act, § 5 (2014), Administration of Estates Act, § 3(a), Cap. 31:01 (1974), Succession (Rights of the Surviving Spouse and Inheritance Family Provisions) Act, § 3, Cap. 31:01 (1970) (Bots).
 Attorney-General v. Unity Dow, 1992 BLR 119, 122A (CA 1992).
 The majority of Batswana practice Ngwaketse customary law. See Tabeth Masengu, Customary Law Inheritance: Lessons Learnt from Ramantele v. Mmusi and Others (Oxford Human Rights Hub, Working Paper No. 6, 2015).
 Ramantele v. Mmusi and Others, High Court Case No. MAHLB-00836-10 at ¶ 105(b) (CA 2013) (Bots).
 See, e.g., Kealeboga and Another v. Kehumile and Another, 2 BLR 259, 271 (CA 2014) (Bots).
 See, e.g., Magwila v. Motsoma, 1 BLR 330, 300 (HC 2010) (Bots).
 Molatedi v. Hirschfield, 2 BLR 396, 396 (HC 2014) (Bots).
 According to the American-published Merriam-Webster dictionary, the correct English term for nationals from Botswana is Botswanan; however, nationals from Botswana typically prefer to refer to themselves as Batswana. See Sitinga Kachipande, Botswana or Batswana? It’s complicated, Voices of Afr. (Aug. 17. 2015), voicesofafrica.co.za/Botswanan-batswana-its-complicated.