Botswana: For Women in Botswana, Victory Against a “Clawback Clause”

Source: Open Society Foundations

For Women in Botswana, Victory Against a “Clawback Clause”

by Priti Patel

Last month, a five-year legal struggle ended with a landmark victory for women’s rights in Botswana. The country’s highest court unanimously decided that four sisters are entitled to inherit their family home.

At the center of the case was Edith Mmusi, an 80-year-old widow. Mmusi had lived in the family home since 1991 and had used her own money to renovate and build on it.

But in 2007 her nephew took legal action in the customary courts. He claimed that under law he was entitled to inherit the property—even though he had never lived there. Edith and her sisters argued that this would violate the Constitution and the Customary Law Act.

Last year, Botswana’s High Court found that the customary rule violated the guarantee of equal protection in the Constitution. But Mmusi’s nephew appealed, and last month the Court of Appeals held that the homestead belonged to Mmusi and her sisters. This unanimous decision from the country's highest court is the first to affirm gender equality under customary law.

Although the Constitution prohibits gender discrimination, it exempts all laws addressing “adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law” from this prohibition. This kind of exemption is often referred to as a “clawback clause” and can be found in a number of constitutions throughout southern Africa, including in Lesotho and Swaziland. It is often invoked to justify blatant gender discrimination.

But the court found that such exemptions “are not unchecked. They must be rational and justifiable either as being intended to ensure that the rights and freedoms of any individual do not prejudice the rights and freedoms of others or as being in the public interest.” The court found that denying Mmusi her property would not be in the public interest, and it would not harm the rights and freedoms of others.

The court left no doubt about the future of discriminatory customary law, stating: “Any customary law or rule which discriminates in any case against a woman unfairly solely on the basis of her gender would not be in accordance with humanity, morality or natural justice. Nor would it be in accordance with the principles of justice, equity and good conscience.”

Customary law, the court said, is flexible and evolves over time to keep pace with changing social mores. The court noted great changes in society over the last 30 years, including the “values of equality before the law, and the increased leveling of the power structures with more and more women heading households and participating with men as equals.” As a result, it found that “there is no rational and justifiable basis for sticking to the narrow norms of days gone by.”

This ruling will also safeguard public health in Botswana. Equal access to property is inextricably linked to HIV. Without access to property, women are more likely to fall into poverty, limiting their ability to protect themselves from HIV infection or to seek treatment.

In 2011 the Global Commission on HIV and the Law found that a rights-respecting legal environment can reduce the number of people infected with HIV by almost one million by 2030. In order to foster this environment, the Commission recommended that all countries reform property and inheritance laws to ensure that women and men have equal access.

This victory is a significant step towards ensuring men and women have equal access to property and inheritance in Botswana, and thus towards more effectively addressing HIV. The decision should be an example of how to protect human rights and public health in other countries in the region with similar clawback clauses.

The Southern African Litigation Centre, a grantee of the Open Society Foundations, litigated Edith Mmusi's case.