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Gender inequality in Botswana: laws and practices (Part 1)

Ndulamo Anthony Morima
EAGLE WATCH

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.

According to government, not even its failure to sign the SADC Gender Protocol should take away from its respect for women’s rights because its reasons for the non-signing are valid, namely that it has concerns about its ability to reach the targets set and the Protocol has prescriptive language.   

In this part, 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; divorce petition; 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. The latter will be based on a random sample of five private companies whose identity will not be disclosed.


First, land ownership rights. In Botswana, there is 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-Malesu, Pelonomi Vincent-Moitoi and Unity Dow of Health; Foreign Affairs; and Education and Skills Development 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. Considering that only four (i.e. Honorables Dorcas Makgatho-Malesu, Pelonomi Vincent-Moitoi, Botlogile Tshireletso and Same Bathobakae) out of fifty-seven Elected Members of Parliament are women and only one (i.e. Honorable Unity Dow) of the four Specially Elected Members of Parliament are women, it is 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 Margret Nasha and Honorable Gladys Kokorwe respectively.


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.


In view of the above, 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, the 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 Education and Skills Development, 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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Is COVID-19 Flogging an Already Dead Economic Horse?

9th September 2020

The Central Bank has by way of its Monetary Policy Statement informed us that the Botswana economy is likely to contract by 8.9 percent over the course of the year 2020.

The IMF paints an even gloomier picture – a shrinkage of the order of 9.6 percent.  That translates to just under $2 billion hived off from the overall economic yield given our average GDP of roughly $18 billion a year. In Pula terms, this is about P23 billion less goods and services produced in the country and you and I have a good guess as to what such a sum can do in terms of job creation and sustainability, boosting tax revenue, succouring both recurrent and development expenditure, and on the whole keeping our teeny-weeny economy in relatively good nick.

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Union of Blue Bloods

9th September 2020

Joseph’s and Judah’s family lines conjoin to produce lineal seed

Just to recap, General Atiku, the Israelites were not headed for uncharted territory. The Promised Land teemed with Canaanites, Hittites, Amorites, Perizzites, Hivites, and Jebusites. These nations were not simply going to cut and run when they saw columns of battle-ready Israelites approach: they were going to fight to the death.

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Security Sector Private Bills: What are they about?

9th September 2020

Parliament has begun debates on three related Private Members Bills on the conditions of service of members of the Security Sector.

The Bills are Prisons (Amendment) Bill, 2019, Police (Amendment) Bill, 2019 and Botswana Defence Force (Amendment) Bill, 2019. The Bills seek to amend the three statutes so that officers are placed on full salaries when on interdictions or suspensions whilst facing disciplinary boards or courts of law.

In terms of the Public Service Act, 2008 which took effect in 2010, civil servants who are indicted are paid full salary and not a portion of their emolument. Section 35(3) of the Act specifically provides that “An employee’s salary shall not be withheld during the period of his or her suspension”.

However, when parliament reformed the public service law to allow civil servants to unionize, among other things, and extended the said protection of their salaries, the process was not completed. When the House conferred the benefit on civil servants, members of the disciplined forces were left out by not accordingly amending the laws regulating their employment.

The Bills stated above seeks to ask Parliament to also include members of the forces on the said benefit. It is unfair not to include soldiers or military officers, police officers and prison waders in the benefit. Paying an officer who is facing either external or internal charges full pay is in line with the notion of ei incumbit probation qui dicit, non qui negat or the presumption of innocence; that the burden of proof is on the one who declares, not on one who denies.

The officers facing charges, either internal disciplinary or criminal charges before the courts, must be presumed innocent until proven otherwise. Paying them a portion of their salary is penalty and therefore arbitrary. Punishment by way of loss of income or anything should come as a result of a finding on the guilt by a competent court of law, tribunal or disciplinary board.

What was the rationale behind this reform in 2008 when the Public Service Act was adopted? First it was the presumption of innocence until proven otherwise.

The presumption of innocence is the legal principle that one is considered “innocent until proven guilty”. In terms of the constitution and other laws of Botswana, the presumption of innocence is a legal right of the accused in a criminal trial, and it is an international human right under the UN’s Universal Declaration of Human Rights, Article 11.

Withholding a civil servant’s salary because they are accused of an internal disciplinary offense or a criminal offense in the courts of law, was seen as punishment before a decision by a tribunal, disciplinary board or a court of law actually finds someone culpable. Parliament in its wisdom decided that no one deserves this premature punishment.

Secondly, it was considered that people’s lives got destroyed by withholding of financial benefits during internal or judicial trials. Protection of wages is very important for any worker. Workers commit their salaries, they pay mortgages, car loans, insurances, schools fees for children and other things. When public servants were experiencing salary cuts because of interdictions, they lost their homes, cars and their children’s future.

They plummeted into instant destitution. People lost their livelihoods. Families crumbled. What was disheartening was that in many cases, these workers are ultimately exonerated by the courts or disciplinary tribunals. When they are cleared, the harm suffered is usually irreparable. Even if one is reimbursed all their dues, it is difficult to almost impossible to get one’s life back to normal.

There is a reasoning that members of the security sector should be held to very high standards of discipline and moral compass. This is true. However, other more senior public servants such as judges, permanent secretary to the President and ministers have faced suspensions, interdictions and or criminal charges in the courts but were placed on full salaries.

The yardstick against which security sector officers are held cannot be higher than the aforementioned public officials. It just wouldn’t make sense. They are in charge of the security and operate in a very sensitive area, but cannot in anyway be held to higher standards that prosecutors, magistrates, judges, ministers and even senior officials such as permanent secretaries.

Moreover, jail guards, police officers and soldiers, have unique harsh punishments which deter many of them from committing misdemeanors and serious crimes. So, the argument that if the suspension or interdiction with full pay is introduced it would open floodgates of lawlessness is illogical.

Security Sector members work in very difficult conditions. Sometimes this drives them into depression and other emotional conditions. The truth is that many seldom receive proper and adequate counseling or such related therapies. They see horrifying scenes whilst on duty. Jail guards double as hangmen/women.

Detectives attend to autopsies on cases they are dealing with. Traffic police officers are usually the first at accident scenes. Soldiers fight and kill poachers. In all these cases, their minds are troubled. They are human. These conditions also play a part in their behaviors. They are actually more deserving to be paid full salaries when they’re facing allegations of misconduct.

To withhold up to 50 percent of the police, prison workers and the military officers’ salaries during their interdiction or suspensions from work is punitive, insensitive and prejudicial as we do not do the same for other employees employed by the government.

The rest enjoy their full salaries when they are at home and it is for a good reason as no one should be made to suffer before being found blameworthy. The ruling party seems to have taken a position to negate the Bills and the collective opposition argue in the affirmative. The debate have just began and will continue next week Thursday, a day designated for Private Bills.

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