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Botswana law discriminates children born out of wedlock

For years now, children born out of wedlock have been subjected to many forms of discrimination under customary and common law in Botswana.

One such example is succession, whereby a child born out of wedlock is prohibited from inheriting from or through his/her father. This discrimination has adverse implications on such children’s rights to equality, non-discrimination and dignity. In Botswana, the possibility of a child born out of wedlock inheriting from his or her father’s estate continues to cause concern in legal circles.

Judgments of the High Courts have repeatedly restated the position in common law and customary law alike – that the extra-marital child is not entitled to inherit from his father, and that the extent of the extra-marital child’s interest in his father’s patrimony is maintenance alone.
It has been argued that discrimination on the basis of illegitimacy differs little from discrimination on the basis of race or sex, this is because illegitimacy is a label that is attached to the child at birth.

In many authorities worldwide, the belief that the child of a non-marital union should be branded for life as an unwanted non-person has been replaced with the idea that equal protection of the law must be afforded to all persons, regardless of the circumstances of their birth.
Common law does not recognise the relationship between a child born out of wedlock and his father.

Without the duty placed on the father to maintain the child, the law recognises the relationship between the child born out of wedlock and his mother and maternal relations – to the exclusion of his father and paternal relations. With regard to matters of succession, the child born out of wedlock in Botswana has no legal right to inherit from his father in intestacy.

The common law rule – set out in Green v Fitzgerald and Others – which provides that the extra-marital child cannot inherit from his father and paternal blood relations, still holds true in Botswana.The rule that a child born outside of wedlock cannot inherit from his father is in fact contrary to morality, humanity, and natural justice.

The rule de-humanises the extramarital child – branding him as a mistake to be ignored, hidden, and forgotten, and does him great injustice by excluding him from the benefit of his father’s estate. It is considered discriminatory by many. A child born within marriage is entitled to inherit from the parents who die without a will.  A child born out of wedlock can only inherit from his/her father where the father has made a settlement or will to the child, or is voluntarily recognized by the father's family. 

However the testacy and intestacy rules are complex due to the overlap of individually owned property and customarily owned land and the latter may fall out of the law relating to testacy and fall to be administered according to customary law. According to a prominent rights lawyer in Botswana who wishes to remain anonymous, this law can be challenged but it will not be easy.

He advices the public to write wills and for fathers who have children born outside marriage to legally adopt their children to avoid their children been discriminated or side lined when it comes to their inheritance. Botswana had an opportunity to consider this issue when promulgating the new Children’s Act. Sadly, the opportunity was missed.

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Khan: Boko, Masisi are fake politicians

18th January 2021
Masisi & Boko

While there is no hard-and-fast rule in politics, former Molepolole North Member of Parliament, Mohamed Khan says populism acts in the body politic have forced him to quit active partisan politics. He brands this ancient ascription of politics as fake and says it lowers the moral compass of the society.

Khan who finally tasted political victory in the 2014 elections after numerous failed attempts, has decided to leave the ‘dirty game’, and on his way out he characteristically lashed at the current political leaders; including his own party president, Advocate Duma Boko. “I arrived at this decision because I have noticed that there are no genuine politics and politicians. The current leaders, Boko and President Dr Mokgweetsi Masisi are fake politicians who are just practicing populist politics to feed their egos,” he said.

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Ookeditse rejects lobby for BPF top post

18th January 2021

Former Botswana Democratic Party (BDP) parliamentary hopeful, Lawrence Ookeditse has rejected the idea of taking up a crucial role in the Botswana Patriotic Front (BPF) Central Committee following his arrival in the party this week. According to sources close to development, BPF power brokers are coaxing Ookeditse to take up the secretary general position, left vacant by death of Roseline Panzirah-Matshome in November 2020.

Ookeditse’s arrival at BPF is projected to cause conflicts, as some believe they are being overlooked, in favour of a new arrival. The former ruling party strategist has however ruled out the possibility of serving in the party central committee as secretary general, and committed that he will turn down the overture if availed to him by party leadership.

Ookeditse, nevertheless, has indicated that if offered another opportunity to serve in a different capacity, he will gladly accept. “I still need to learn the party, how it functions and all its structures; I must be guided, but given any responsibility I will serve the party as long as it is not the SG position.”

“I joined the BPF with a clear conscious, to further advance my voice and the interests of the constituents of Nata/Gweta which I believe the BDP is no longer capable to execute.” Ookeditse speaks of abject poverty in his constituency and prevalent unemployment among the youth, issues he hopes his new home will prioritise.

He dismissed further allegations that he resigned from the BDP because he was not rewarded for his efforts towards the 2019 general elections. After losing in the BDP primaries in 2018, Ookeditse said, he was offered a job in government but declined to take the post due to his political ambitions. Ookeditse stated that he rejected the offer because, working for government clashed with his political journey.

He insists there are many activists who are more deserving than him; he could have chosen to take up the opportunity that was before him but his conscious for the entire populace’s wellbeing held him back. Ookeditse said there many people in the party who also contributed towards party success, asserting that he only left the BDP because he was concerned about the greater good of the majority not individualism purposes.

According to observers, Ookeditse has been enticed by the prospects of contesting Nata/Gweta constituency in the 2024 general election, following the party’s impressive performance in the last general elections. Nata/Gweta which is a traditional BDP stronghold saw its numbers shrinking to a margin of 1568. BDP represented by Polson Majaga garnered 4754, while BPF which had fielded Joe Linga received 3186 with UDC coming a distant with 1442 votes.

There are reports that Linga will pave way for Ookeditse to contest the constituency in 2024 and the latter is upbeat about the prospects of being elected to parliament. Despite Ookeditse dismissing reports that he is eying the secretary general position, insiders argue that the position will be availed to him nevertheless.

Alternative favourite for the position is Vuyo Notha who is the party Deputy Secretary General. Notha has since assumed duties of the secretariat office on the interim basis. BPF politburo is expected to meet on 25th of January 2020, where the vacancy will be filled.

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BDP cancels MPs retreat

18th January 2021
President Masisi

Botswana Democratic Party (BDP) big wigs have decided to cancel a retreat with the party legislators this weekend owing to increasing numbers of Covid-19 cases. The meeting was billed for this weekend at a place that was to be confirmed, however a communique from the party this past Tuesday reversed the highly anticipated meeting.

“We received a communication this week that the meeting will not go as planned because of rapid spread of Covid-19,” one member of the party Central Committee confirmed to this publication.
The gathering was to follow the first of its kind held late last year at party Treasurer Satar Dada’s place.

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