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Gender equality in African customary law: has the male ultimogeniture rule any future in Botswana?*

Published online by Cambridge University Press:  18 August 2014

Charles Manga Fombad
Charles Manga Fombad*
Affiliation:
Institute for International and Comparative Law in Africa, Faculty of Law, University of Pretoria, Pretoria, South Africa
*
Email: [email protected]
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Abstract

The actual and perceived conflicts between customary law and human rights law, especially in issues dealing with gender equality, have remained a major challenge in Africa. Some of these conflicts are further complicated by the varying and contradictory interpretation of some customary laws by the courts. Different approaches have been adopted at different times and in different places to deal with some of these conflicts. One of the most controversial areas of customary law has been the traditional exclusion of women from property inheritance. This paper takes a critical look at how the courts in Botswana have dealt with the issue of the right to inherit the homestead or family home. It examines this issue in the specific context of the recent case of Ramantele v Mmusi in which the Court of Appeal had to consider the customary law rule of male ultimogeniture – which permits only the last-born son to inherit the homestead intestate to the exclusion of other siblings, especially females. It argues that courts need to be more proactive and progressive in their approach to dealing with such issues than they have been in the past in order to recognise the nature and extent of changes that are taking place today. The main lesson that can be drawn from the Botswana case is that if customary law is to survive and develop, more needs to be done to promote research and scholarship in this area and judges also need to take advantage of this research and deal with these customary law disputes with knowledge, understanding and sensitivity.

Type
Research Article
Information
The Journal of Modern African Studies , Volume 52 , Issue 3 , September 2014 , pp. 475 - 494
Copyright
Copyright © Cambridge University Press 2014 

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Footnotes

*

The author acknowledges with profound gratitude the comments and suggestions he received from two anonymous referees. However, the author takes responsibility for all the opinions as well as any errors expressed in the paper.

References

REFERENCES

Baker, J.C. & Koyana, D.S.. 2012. ‘The judicial and legislative reform of the customary law of succession’, De Jure 45, 3: 568–84.Google Scholar
BBC Africa News headlines, ‘Botswana landmark Case Ends Patriarchal Inheritance System’, <www.loc.gov/lawweb/servlet/lloc_news?disp3_l205403370_text>, accessed 12.10.2012.,+accessed+12.10.2012.>Google Scholar
Budlender, D., Mgweba, S., Motsepe, K. & Williams, L.. 2011. Women, Land and Customary Law. Johannesburg: Community Agency for Social Enquiry.Google Scholar
Comaroff, J. & Comaroff, J.. 2003. ‘Reflections on liberalism, policulturalism and id-ology: citizenship and difference in South Africa’, Social Identities 9, 4: 445–73.Google Scholar
Comaroff, J. & Roberts, S.. 1981. Rules and Processes: The Cultural Logic of Dispute in an African Context. Chicago. IL: Chicago University Press.Google Scholar
Fombad, C.M. 2004. ‘Customary courts and traditional justice in Botswana: present challenges and future perspectives’, Stellenbosch Law Review 15: 166–92.Google Scholar
Fombad, C.M. 2012. ‘Internationalization of constitutional law and constitutionalism in Africa’, American Journal of Comparative Law 60, 2: 439–74.Google Scholar
Fombad, C.M. 2014a. ‘Africanisation of legal education programmes: the need for comparative African legal studies’, Journal of Asian and African Studies (forthcoming).Google Scholar
Fombad, C.M. 2014b. ‘The Context of Justice in Africa: Emerging Trends and Prospects’. UNDP, forthcoming.Google Scholar
Griffiths, A. 2011. ‘Delivering justice: the changing gendered dynamics of land tenure in Botswana’, Journal of Legal Pluralism 63: 229–60.Google Scholar
Griffiths, A. 2013. ‘Re-envisioning the local: spatiality, land and law in Botswana’, International Journal of Law in Context 9, 2: 213–38.Google Scholar
Human Rights and Rule of Law. 2014. <www.uneca.org/agr2005/chap6.pdf>, accessed 24.5.2014.,+accessed+24.5.2014.>Google Scholar
Jonas, O. 2013. ‘Gender equality in Botswana: the case of Mmusi and others v Ramantele and others’, African Human Rights Journal 13: 229–44.Google Scholar
Junior, L.M.P.B. 2014. ‘Limits and possibilities of the use of foreign materials by courts, in constitutional adjudication: redefining the role of comparativism in theories of constitutional interpretation’, <www.enelsyn.gr/papers/w7/Paper%20by%20Prof.%20Luiz%20Magno%20Pinto%20Bastos%20Junior.pdf>, accessed 24.5.2014.,+accessed+24.5.2014.>Google Scholar
Kalabamu, F.T. 2000. ‘Land tenure and management reforms in East and Southern Africa – the case of Botswana’, Land Use Policy 17: 305–19.Google Scholar
Kalabamu, F.T. 2006. ‘Patriarchy and women's land rights in Botswana’, Land Use Policy 23: 237–46.Google Scholar
Kalabamu, F.T. 2009. ‘Towards egalitarian inheritance rights in Botswana: the case of Tlokweng’, Development Southern Africa 26, 2: 209–23.Google Scholar
Knoetze, E. 2007. ‘Westernization or promotion of the African woman's rights? Customary intestate succession in South Africa’, in 12th World Conference, International Society on Family Law; Family law: balancing interests and pursuing priorities, 551–6.Google Scholar
Kommers, D. 2002. ‘Comparative constitutional law: its increasing relevance’, in Jackson, V. & Tushnet, M., eds. Defining the Field of Comparative Constitutional Law. Westport: Fraeger, 61–70.Google Scholar
Lehnert, W. 2005. ‘The role of the courts in the conflict between African customary law and human rights’, South African Journal of Human Rights 21: 241–77.Google Scholar
Maithufi, I. 1998. ‘The constitutionality of the rule of primogeniture in customary law of intestate succession – Mthembu v Letsela 1997 2 SA 936(T)’, THRHR 61: 142–7.Google Scholar
Markesinis, B. & Fedtke, J.. 2006. Judicial Recourse to Foreign Law: a new source of inspiration? London: Routledge-Cavendish.Google Scholar
Molapo, M. 1994. ‘Women and shelter development’, paper presented at the Housing for the Urban Poor Symposium, Birmingham, 11–14 April 1994 (on file with author).Google Scholar
Molokomme, A. 1990. ‘Women's law in Botswana’, in Stewart, J. & Armstrong, A., eds. The Legal Situation of Women in Southern Africa, Vol. II. Harare: UZ Publications, 7–46.Google Scholar
Morale, B. 2012. ‘A new dawn for women in Botswana: the landmark ruling on women's right to inherit property’, <http://deltawomen.blogspot.com/2012/11/a-new-dawn-for-women-in-botswana.html>, accessed 24.5.2014., accessed 24.5.2014.' href=https://scholar.google.com/scholar?q=Morale,+B.2012.+‘A+new+dawn+for+women+in+Botswana:+the+landmark+ruling+on+women's+right+to+inherit+property’,+,+accessed+24.5.2014.>Google Scholar
Mqeke, R.B. 2003. Customary Law and the New Millennium. Alice: Lovedale Press.Google Scholar
Rautenbach, C. 2008. ‘South African common and customary law of intestate succession: a question of harmonisation, integration or abolition?’ Electronic Journal of Comparative Law 12, 1.<http://www.ejcl.org/121/art121-20.pdf>.Google Scholar
Rautenbach, C. & du Plessis, W.. 2011. ‘Reform of customary law of succession’, in Fenrich, J., Galizzi, P. & Higgins, T.E., eds. The Future of African Customary Law. Cambridge: Cambridge University Press, 336–49.Google Scholar
Saunders, C. 2006. ‘The use and misuse of comparative constitutional law’, Indiana Journal of Global Legal Studies 13, 1: 37–76.CrossRefGoogle Scholar
Schapera, I. 1955. A Handbook of Tswana Law and Custom, 2nd edn. London: Frank Cass & Co.Google Scholar
Scholz, B. & Gomez, M.. 2004. Bringing Equality Home: promoting and protecting the inheritance rights of women. Geneva: Centre on Housing Rights and Evictions (COHRE).Google Scholar

CASES

Bhe v Magistrate Khayetlitsha 2005 (1) BCLR 10.

Mthembu v Letsela 2000(3) SA 867(SC).

Mthembu v Letsela 1998 (2) SA 675(T).

Mthembu v Letsela 1997 (2) SA 936(T).

Mmusi and Others v Ramantele (MAHLB-000836-10)[2012] BWHCI (12 October 2012) (Unreported).

Ramantele v Mmusi and Others (CACGB-104-12) (3 September 2013) (Unreported).

S v Mhlungu 1995 (3) SA 867 (CC).