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Home » Columns » Gender (in)equality in Botswana(Part I)

Gender (in)equality in Botswana(Part I)

Publishing Date : 05 December, 2017

Ndulamo Anthony Morima
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The 2017 Global Gender Gap Index ranks Botswana at position 122 out of 144 countries. In this two part series we consider whether this ranking is a true reflection of Botswana’s gender relations.



Often, statements have been made by gender activists that Botswana is bedeviled by gender inequality. Government, on the other hand, has been on the defense, contending that just like it has an impeccable human rights record, its respect for gender rights is without blemish. Who is right?  

In part I, we make a review of equality between men and women in Botswana in both law and practice. We consider such areas as land ownership; non-land property ownership; succession and inheritance and divorce petition. We also use independent travel; access to employment opportunities and benefits in the workplace; and representation in the executive, judiciary, legislature, Ntlo ya Dikgosi, previously the House of Chiefs, and the public service.


In part II we will consider gender representation in government agencies and directorates, the Botswana Police Service, Botswana Defence Force, local government authorities, parastatals, organized groups, e.g. trade unions and employers’ organizations, political parties and the private sector.


First, land ownership rights. We have no law that deprives women, both married and unmarried, from owning land to the same extent that men do. Second, non-land property rights. Similarly, no law in Botswana accords one gender, even regarding married people married in or out of community of property, better rights over the other with respect to acquisition and/or ownership of non-land property.


In terms of section 7 of the Abolition of Marital Power Act 34 of 2004, “…, a husband and wife married in community of property shall have equal capacity to (a) dispose of the assets of the joint estate; (b) contract debts for which the joint estate is liable; and (c) administer the joint estate. Also, subject to section 9 of the Abolition of Marital Power Act 34 of 2004, “…a spouse married in community of property may perform any juristic act with regard to the joint estate without the consent of the other spouse”.


Further, in terms of section 15(2) of the Abolition of Marital Power Act 34 of 2004 a spouse married out of community of property has a right of recourse against the other spouse in so far as he or she has contributed to the acquisition of property by that other. Third, inheritance rights. The landmark case of Mmusi and Others v Ramantele and Another MAHLB-000836-10 has established the rights of women to inherit and, I opine, to succession in terms of family and tribal positions of authority.


The inheritance provision is in keeping with international best practice because as per the United Nations Entity for Gender Equality and the Empowerment of Women, “…legislation should prohibit discrimination against women and girls in inheritance and explicitly allow females to inherit property and land on an equal basis with males”.


The succession provision is also in line with international best practice because as per the United Nations Entity for Gender Equality and the Empowerment of Women, “…laws governing lines of succession should ensure equality of rank between mothers and fathers, between brothers and sisters, between daughters and sons, and between spouses.
 

Even in statutory law, I am unaware of any statute that makes women’s rights to inherit less than those of their male counterparts. Hitherto the Mmusi case, the disparity was more to do with practice emanating from the unwritten customary law of some tribes, in that case the BaNgwaketse, than codified statutory law passed by Botswana’s Parliament.


Fourth, divorce petition rights. In terms of the High Court Act, CAP. 04:02, a married woman, just like a married man, can, as Plaintiff, commence divorce proceedings. Neither spouse needs assistance by the other or any other person to petition for divorce. Fifth, rights to independent travel. While Batswana women, especially married women before the passing of the Abolition of Marital Power Act 34 of 2005, suffered discrimination in many respects, they never suffered any legal restrictions in terms of travel. Women, like men, have always enjoyed an almost unfettered constitutional right to the freedom of movement as enshrined in section 14 of the Constitution.


Sixth, access to employment opportunities and benefits in the workplace. In terms of the Employment Act, CAP. 47:01, both men and women enjoy the same rights to employment. Unlike in other countries, there is neither law nor practice which legitimizes more pay for men than for women. Men and women are also equally entitled to such benefits in the workplace as rest periods, leave with pay, paid public holidays, paid sick leave, severance pay, e.t.c in terms of sections 93, 98, 99, 100 and 27 respectively of the Employment Act, CAP. 47:01.


In addition, women’s rights to absence from work in connection with confinement and maternity allowance; payment of maternity allowance; prohibition of termination of employment during maternity leave; and permission to nurse the child after returning to work are protected in terms of sections 113, 114, 115, 116, 117 and 118 respectively of the Employment Act, CAP. 47:01. While Botswana law generally protects both males and females equally, certain gender inequality practices exist with respect to cabinet appointments; representation in the judiciary; representation in Parliament and representation in Ntlo ya Dikgosi, previously the House of Chiefs.


First, cabinet appointments. Both the President and the Vice President are males. In fact, Botswana has never had a female President or Vice President. Of the sixteen Ministers, only three, i.e. Dorcas Makgatho, Pelonomi Vincent-Moitoi and Dr. Unity Dow of Health and Wellness; International Affairs & Corporation; and Basic Education respectively are women.


Of the eight Assistant Ministers, only one, Botlogile Tshireletso, Assistant Minister in the Ministry of Local Government and Rural Development, is a woman. One can, therefore, conclude that in Botswana cabinet appointments do not take gender into consideration. Second, representation in the judiciary. Botswana’s highest court, the Court of Appeal, which is currently undergoing a localization process, has four local justices of appeal none of whom is a woman.


As regards the High Court, only three (i.e. Justices Dambe L, Tau T and Garekwe M) out of twenty four permanent judges are women. As regards the Industrial Court, only two (i.e. Justices Marumo J B and Mathiba A R) out of seven judges are women. Though I was not, at the time of writing this article, able to ascertain the gender representation in the magistracy, it appears there are more females magistrates than there are males though the difference is marginal.  


Third, representation in Parliament. Only three, i.e. Honorables Dorcas Makgatho, Pelonomi Vincent-Moitoi and Botlogile Tshireletso, out of fifty-seven Elected Members of Parliament are women. Only two, i.e. Honorables Dr. Dow and Bogolo Kenewendo, of the six Specially Elected Members of Parliament are women. It is, therefore, incontrovertible that representation in the legislature does not take gender into consideration.


It ought to be noted, however, that both the last and the current Parliament have had female Speakers, being Honorable Dr. Margret Nasha and Honorable Gladys Kokorwe respectively, deputized by males. Ntlo ya Dikgosi, previously called the House of Chiefs, too is marred by gender inequality. According to the Ministry of Labour & Home Affairs’ 2008 Gender Disaggregated Data on Decision Making Positions, of the thirty four members, only three were women while thirty one were males.


This situation has hardly changed. Also, to the best of my recollection, no woman has ever been elected as Chairperson for Ntlo ya Dikgosi. This is not surprising because Botswana’s traditional leadership being predominantly patriarchal, chieftainship is inherited by sons from birth.


In the public service too, especially for decision-making positions, gender disparity is rife. According to the Ministry of Labour & Home Affairs’ 2008 Gender Disaggregated Data on Decision Making Positions, 63% of men occupied the civil service’s decision making positions, i.e. D1 scale to F0 scale, compared to a paltry 37% for women. Women had the lowest appointments to the salary scale of F0 (18%) while men had the highest score of appointment to the same salary grade (82%). This situation has not changed.


It can be concluded that while in terms of the law Botswana cannot be accused for gender inequality, it certainly lags behind in as far as practices are concerned. Following the Unity Dow citizenship case, government has done a lot in passing women’s rights compliant laws and amending and/or repealing non-compliant laws. Examples of these are the amendment of the Citizenship Act post the Dow case, and the enactment of the Abolition of Marital Powers Act 34 of 2004.


A little exposition of the Dow case is perhaps apposite. In 1991, the current Minister of Basic Education, Dr. Unity Dow, then a lawyer and gender activist, instituted court proceedings against the Government of Botswana challenging the constitutionality of legislation that denied married women the right to pass on Botswana citizenship to their children. Prior to 1984, women had this right, but the new 1984 Citizenship Act repealed it, even though men married to non-citizens could pass on the right of citizenship. This was the crux of Dow’s litigation.

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