“Courts in the region… are stepping up the challenge (of women’s) changing role in society,” said Deputy Director of the South African Litigation Centre, Priti Patel.
In October, the Botswana High Court decided the case Mmusi and Others v. Ramantele and Another. The Court held that the Ngwaketse custom of only transferring family homes to the youngest son is unconstitutional. This decision came after Edith Mmusi and her three sisters disputed their nephew’s claim to the family home. Their nephew, Molefi Ramantele, relying on the Ngwaketse custom to support his claim, argued that their family home had been promised to his father by Mmusi’s only brother.
This decision differs from customary law without creating blanket bans on traditions and is an example of how African countries are struggling to find a balance between gender equality and traditional practices. The recent court rulings, which have recognized the need for equal rights for women, are a first step. The next step will be for the community to recognize women’s land rights.
The Mmusi decision will set a precedent that could affect other patrilineal customs, potentially impacting 90 percent of the Botswana population, according to Attorney General Athalia Molokomme.
As in many other countries, the Botswana Constitution allows for the exercise of customary law that is not repugnant to formal law. The Constitution also prohibits discrimination. The presiding judge, Key Dingake, relied on Section 3 of the Constitution, which prohibits discrimination through guarantees for all people of Botswana, regardless of “his race, place of origin, political opinions, colour, creed or sex.”
Yet even with these antidiscrimination provisions, it remains a challenge to make changes to customary law that discriminates against women.
Looking at the words of Attorney General Molokomme and the presiding judge, Judge Dingake, this tension is evident. Molokomme, a former deputy chair of the board of the southern African women’s rights group Gender Links, was forced to toe the line between women’s rights and tradition by serving as counsel for Ramantele. Instead of arguing that the provision was not discriminatory, Molokomme had to support Ramantele’s claim and recommended that the High Court grant Ramantele ownership over the family home because “it [is] too soon to abandon such culturally ingrained rules.”
The judge, however, did not agree with this sentiment, stating that “any reasonable and fair minded person” would recognize that the customary law is biased, as it can result in daughters being evicted from the family home when their parents die. In his opinion, Judge Dingake wrote of the movement toward ending gender discrimination based on customary inheritance laws in Ghana, Kenya, India, Nigeria, South Africa, and Tanzania. Judge Dingake stated: “[T]he time has now arisen for the justices of this court to assume the role of the judicial midwives and assist in the birth of a new world struggling to be born, a world of equality between men and women as envisioned by the framers of the Constitution.”
Rulings like the Mmusi decision are important because they add support to work that seeks to provide women secure land rights. This security is dependent on communities embracing changes that keep widows and female children from being displaced following the death of male heads of households.
Here at Landesa, we are working to ease the equality-customary law tension outside of the court system, with projects like the USAID-supported Kenya Justice Project. One important aspect of this project is the use of community conversations that facilitate talks about women’s land rights among community elders, women, and youth. Following these conversations, elders and chiefs drafted a local katiba (constitution) that will help ensure that they follow the principles related to equality in the national constitution. This local recognition of women’s rights, especially from elders and chiefs, is one way to advance the movement toward women’s equality without dismantling customary law and practices. The combination of local advocacy and legal action, like the Mmusi decision, are promising for the future of women’s land rights.
This post was originally published on TrustLaw’s The Word on Women blog on December 21, 2012. Aisha Davis is a fellow at the Landesa Center for Women’s Land Rights.