In a unanimous decision written by Justice Lesetedi, the Court of Appeal held that customary law is inherently flexible and in this case the four sisters, who used their own money to renovate the homestead were entitled to inherit it. Justice Lesetedi noted that societal realities have changed over the last thirty years, stating that the “Constitutional 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 in the public sphere and increasingly in the private sphere, demonstrate that there is no rational and justifiable basis for sticking to the narrow norms of days gone by when such norms go against current value systems.”
“The judgment today by the Court of Appeal made it clear that women are not second class citizens in Botswana,” said Priti Patel, Deputy Director of the Southern Africa Litigation Centre (SALC), which supported the case. “The Court of Appeal’s unanimous decision – noting that customary law unjustly discriminating against women solely on the basis of their gender would violate the Constitution and the laws of Botswana – was a significant move forward in ensuring the end of gender discrimination in Botswana.”
At issue was whether daughters can inherit the home. Edith Mmusi, who is 80 years old and who with her three sisters was victorious in the High Court case, claimed that she had lived in the family home and had spent her own money on improving it and thus she and her three sisters should inherit. This claim was challenged by her nephew who asserted that his father was given the home by the youngest-born son and thus he was entitled to the property though he had never lived on the property.
Chief Justice Kirby in his concurrence upheld women’s equality noting that “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.”
“Some people had feared that the Court of Appeal would set the fight for women’s rights back yet again,” said Patel. “But instead they ruled unanimously in favour of equality and against gender discrimination. It is a hugely important decision not only for Botswana but for women across southern Africa.”