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

Without access to property, women are more likely to fall into poverty, limiting their ability to protect themselves from HIV infection.

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.

11 Comments

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This is an amazing decision! Congratulations to the advcoates involved in this.

Great news for women in Botswana and in Africa. Litigation can be a powerful tool for enforcement of human rights.

Thank you Mama Edith Mmusi for putting such a fight against patriarchy on behalf of all women.

The Sierra Leone Judiciary has made lots of citizens to lose confidence in law; and the nature of constitutions to protect fundamental and democratic rights. But when reading this outstanding judgment from the Botswana High and Appeals Courts, it once again rekindle my confidence and faith that law can actually guarantee rights and liberate people especially, the vulnerable. This customary case was almost the same that we had in Sierra Leone when some backward traditionalists refused to allow women to participate in an election to becoming a Paramount Chief on the bases of custom. This was enforced by the Provincial Secretary but more shamefully, by the Court of Appeal, sanctioning discriminatory customary practice that violated the equality principle of the 1991 Constitution of Sierra Leone. I would encourage our judiciary to read this ruling and learn from this progressive judgment. My profound thanks to the Botswana judiciary.

Hello, I'm very happy when I read about EDITH Mmusi decision and her engagement. I congratulate her for this opportunity.

Same type social culture in our country(Bangladesh) but out govt. trying to change .Many person who lives in rural who can't reach to court, they are suffer with illegal.

Congratulations to Mama Mmusi and all who supported her. This is a longterm effort. Congratulations to the high court who made this decision. Too often judiciary systems are unwilling to confront customary law. The best is possible when tribal leaders talk and look at the effects of practice...and have a safe space to reflect on what is best for their people! especially the "least" considered: elders, women, widows, children...

My congratulations, also. In the US, one of our most powerful songs for social justice has a chorus that goes, "Every victory brings another, Carry it on, Carry it on!"

Mama Msumi, thank you for spearheading this victory, It will bring more after it. I am sure.

I encourage all readers to check out the fact sheets listed on the right-hand side of this posting. They contain specific strategies for using language in the Global Commission's report to advance advocacy in these areas. I hope it is useful to you.Thank you to all who are working for justice. Carry it on!

While congratulating Edith Mmusi, the Judiciary desrve a part on the back for lawfully dealing with the clauses in the laws which are usually used to pervert justice in many climes

This was a real landmark victory not only in Botswana but hopefully in southern Africa as well and Edith Mmusi is a real hero. A number of courts in other southern African countries are facing similar issues and we hope they are as courageous as the Court of Appeal in Botswana in ending discrimination.

its reassuring to know that there has bn such a break through in upholding women's rights in Botswana. congrats to Edith Mmusi and her sisters and kudos to those advocates who were involved in ensuring that the women's rights was upheld.

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