Laying down the law on women's rights

By Priti Patel | November 06th, 2012
Justice working for women's rights
Justice working for women's rights

Four elderly sisters got to breathe a sigh of relief in Botswana in October. Due to a bombshell judgment from the Botswana High Court, they were able to stave off an eviction from their home by other family members. It was a life-changing legal victory for the sisters - but also a precedent-setting case for women across the region.

Throughout southern Africa, women are dispossessed of property when their fathers or husbands die. Custom and tradition dictate that they simply have to accept their fate. But remarkably, the four sisters contested the discriminatory customary law that was going to see them dispossessed - and won.

Arguing that they had all lived on the property at various times and had assisted in renovating and expanding the home, the four sisters challenged the traditional law that mandated that only the youngest son could inherit - on the basis that it violated their right to equality under Botswana's Constitution.

The Attorney-General of Botswana had been asked by the court to present the government’s arguments in the matter. She argued that - although the rule was discriminatory, as it did not permit women to inherit the family home - Botswanan  society was not ready for equality between men and women. She urged the court to defer to public opinion, especially in light of her claim that this particular customary law rule affected 90% of the Botswanan population.

Despite clear government opposition, the court categorically rejected the rule, holding that it violated the right to equality. Indeed, the court “rejected outright any suggestion...that the court must take into account the mood of society in determining whether there is a violation of constitutional rights as this undermines the very purpose for which the courts were established”.

It was a remarkably progressive decision. But will it cause waves beyond Botswana? It certainly set a precedent - that culture cannot trump the right to equality - but it is too early to say what longterm impact it might have in southern Africa, especailly as exectuives and legislatures are not exactly leading the fight for gender equality. However, the signs are promising because this is the second major legal victory for women's rights in the region in the past few months.

In July, the Namibian High Court found that the government had forcibly sterilised three HIV-positive women at public hospitals. In the first case of its kind in the region, the High Court assessed whether medical personnel in public health facilities adequately gained the HIV-positive women’s informed consent prior to subjecting them to a permanent sterilisation - and found that in all three cases, the medical personnel had not. Dozens of other HIV-positive women have recounted similar experiences in Namibia and in other countries in the region.

The question now is will other courts and judges follow suit and rule in favour of greater gender equality. Up next is Lesotho's Constitutional Court, which is currently deciding whether to strike down part of the country's discriminatory Chieftainship Act, which denies women the right to succeed to chieftainship. A young, unmarried woman, Senate Masupha, challenged the law, arguing that as the first-born child of the deceased chief, she should inherit. The court has heard arguments in the matter and is expected to make its decision soon.

If the Lesotho court rules in favour of Senate, it will represent another major step on the road to genuine equality in the region. But even it if doesn't, the decisions in Botswana and Namibia have already moved the debate about women's rights forward - and highlighted the changing role of women in society. More importantly, the two landmark rulings have demonstrated that courts in the region are stepping up to the challenge - and starting to play a critical role in promoting women's rights.

A version of this article originally appeared in South Africa's City Press newspaper

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