“My father, my home”: Botswana ruling in favour of daughters’ right to inherit

Gender, Governance, In the news, Rights

A recent ruling giving four Botswana sisters the right to inherit their family home adds to the growing tide of legislative change giving men and women equal rights to land and property.

On the 12th October four Botswana sisters won the legal right to inherit their father’s estate, that’s good news for them and for women across Africa.

In a groundbreaking case, Judge Key Dingake ruled that customary rule law (which would have forced the sisters to leave the home in favour of a male relative) was anti-constitutional violating their right to equality under section 3(a) of the Constitution.

“For many women, the death of their husbands means the beginning of abject poverty.”
Simba Mhare, Harare, Zimbabwe

Following the death of their parents in 2007, the family farm was set to pass to a male relative in line with Botswana customary rule law, In this case it was to go to the son of their late father’s brother, who had never lived at the house or made any contribution to its upkeep.

Such discriminatory practices are widespread across Africa and are rooted in the tradition of the extended family system, seeking to preserve cohesion and stability within the family unit and ultimately the entire community.

Historically, inheritance conferred rights with responsibilities to administer the estate for the benefit of the family unit as a whole. But in Botswana, as elsewhere, nuclear families are replacing the extended family system meaning that male heirs often acquire the estate without assuming any of the deceased’s responsibilities to other dependants and descendants. Customary laws have not moved with the times.

The legal team who took up Edith Mmusi and her sisters’ case, Batswana lawyer Tshiamo Rantao and Johannesberg based Southern Africa Litigation Centre (SALC) confronted many barriers to the sisters’ challenge to the status quo – not the least the perceived attack on Botswana’s “culture”.

Culture is a powerful argument, often used to cloak practices that systematically perpetuate inequality. Those navigating the emotionally charged waters of cultural change can take heart from the Judge’s words in his summation:

“This gross and unjustifiable discrimination cannot be justified on the basis of culture…It cannot be an acceptable justification to say it is cultural to discriminate against women”.

The Botswana ruling is a fabulous example of the power of legal advocacy to bring about changes that impact meaningfully on the daily lives and livelihoods of African women.

It adds to the growing tide of legal victories that are eroding barriers to recognition for women’s equal status and rights. The green light has been given for other discriminatory customary laws to be held up to scrutiny, creating a powerful legal precedent for other cases across the continent.

A cascade effect of change across Africa can give moral support to those campaigning for change in difficult contexts. In Ghana  and South Africa, High Court rulings have also overturned the custom of male primogeniture as having no place alongside Constitutional rights giving men and women equal rights under the law.

Access to property and land is central to women’s rights and to their ability to move out of poverty. Experience from Oxfam’s Raising Her Voice (RHV) programme tells us that our impact is most meaningful and enduring when women are supported in the personal, social and political spheres.

In the words of a local woman leader engaged in RHV’s programme in Pakistan:

“Restoring one right helps to protect other connected rights…thus women’s right to identity ensures their subsequent access to justice, health care, education and right to vote”. 

Powerful legal advocacy by civil society organisations and pan-African coalitions is challenging a raft of discriminatory laws and practices around the continent.

On July 30th the Namibian High Court found that three HIV positive women had been forcibly sterilised at public hospitals, ruling that they had a right for their voice to be heard and to withhold or grant their consent. In Lesotho, the Constitutional Court is debating whether to strike down part of the Chieftaincy Act which denies women the right to accede as chiefs.

In the Botswana ruling, the Judge explicitly referred to the bearing upon the case of Botswana’s international and regional obligations. Undeniably this endorses the power of legal advocacy at national and regional levels to influence change.

In Africa, working with Solidarity for African Women’s Rights (SOAWR) a coalition of 36 partners, the RHV programme has been pushing for the ratification and popularisation of the AU Protocol on the Rights of Women, better known as the Maputo Protocol. Its pan-African network has created a platform to ensure women’s rights are on the agenda of senior decision makers simultaneously bridging the gap between rights enshrined in the Protocol and their practical
application.

Making a difference means making change tangible and immediate: the four sisters have not had to start a new life cut off from their family, friends and their source of livelihood. It also means improving the environment for change: as a powerful legal precedent this ruling clearly does that.

The legislative changes spreading across Africa are cause for celebration. They are milestones that will be remembered on the road to gender equality and they can motivate development practitioners and advocacy planners as they look to the law as a powerful springboard for change.

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Picture infomation: Two of the Mmusi sisters, their primary lawyer and one of their sons. Picture courtesy of Southern Africa Litigation Centre

Author: Jacky Repila
Archive blog. Originally posted on Oxfam Policy & Practice.