Botswana: The constitution – Women speak out
Political parties and women’s organizations in Botswana have made a submission to the Commission of Inquiry into the Review of the Constitution.
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This submission to the Commission of Inquiry into the Review of the Constitution of Botswana (the Dibotelo Commission) is made by a cross-section of women from five major political parties, as well as women’s organizations and civil society partners. Molaomotheo- Buang Bomme! (The Constitution- Women Speak out) argues that a compelling reason for the review of Botswana’s 55- year- old Constitution is to ensure compliance with global, African, and Southern African regional commitments to attain gender equality.
ACKNOWLEDGEMENTS
Representatives of all five major political parties and seven Women’s Rights Organisations (see Annex A) prepared this paper. Gender Links, the UN Resident Coordinator’s Office in Botswana, UN Women East and Southern Africa Regional Office (ESARO), and the South Africa Multi-Country Office (SAMCO) provided technical support. The paper draws its inspiration from three academies on Women’s Political Participation sponsored by the Embassy of Sweden in Addis Ababa through International Idea (II). The academies form part of an II-led consortium Enhancing the Inclusion of Women in Political Participation in Africa. The academies brought together serving and aspiring women politicians from all political parties (local and national) for capacity-building and cross-generation dialogues on women’s equal and effective participation in decision-making from November 2021 to March 2022. These dialogues identified the Commission of Inquiry into the Review of the Constitution as a key strategic entry point for effecting change. The Independent Electoral Commission (IEC); Botswana Association of Local Authorities (BALA); Pamela Dube of Kgola Media; Mishingo H. Jeremia of Jeremia Attorneys and Botlogile Tshireletso – Former Assistant Minister of Local Government and Rural Development and MP for Mahalapye East, made valuable inputs into the debates that have shaped this paper. Our sincere appreciation to all partners, – national, regional and international – who have collaborated in this visionary submission.
EXECUTIVE SUMMARY
This submission to the Commission of Inquiry into the Review of the Constitution of Botswana (the Dibotelo Commission) is made by a cross-section of women from five major political parties, as well as women’s organizations and civil society partners (see Annex A).) Molaomotheo- Buang Bomme! (The Constitution- Women Speak out) argues that a compelling reason for the review of Botswana’s 55- year- old Constitution is to ensure compliance with global, African, and Southern African regional commitments to attain gender equality.
Constitutions are the most authoritative expressions of States’ systems of governance and accountability. Constitutions can trigger legislative and policy changes in support of gender equality and social justice. In Botswana, the Attorney General v. Unity Dow (1992) case concerning the right of her husband and two children to citizenship, and more recently the Attorney General vs Mathe (2022) case concerning dual nationality demonstrate the power of the Constitution to alter discriminatory laws. The 2021 Court of Appeal ruling against criminalizing same-sex relationships as a violation of the rights of LGBTIQ+ individuals to dignity, liberty, privacy, and equality is another example of the power of Constitutions.
Since the adoption of the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1979, there has been a marked increase in constitutional reviews and amendments to enhance women’s rights. These reviews are closely linked to the more open and participatory constitutional processes that emerged in the 1980s and 1990s. Since the 1980s, constitutional content has evolved from gender-neutral to gender-specific language, notably in post-conflict African, Asian, and Latin American countries.
Botswana’s 1966 Constitution is at best gender blind; at worst contains discriminatory clauses at odds with its international obligations. Areas that need review and strengthening have been pointed out in the Universal Periodic Review (UPR) of Botswana by the UN Human Rights Council (2018) and CEDAW’s Committee Conclusions and Recommendations to Botswana’s report in 2019 (see Annex B).
A review of the Constitution would provide a unique opportunity for Botswana to:
- Strengthen equality and non-discrimination clauses in the Constitution.
- Identify current gaps and or weak provisions which will, in turn, inform proposals for specific provisions for women’s rights.
- Provide for affirmative action (broadly) and enhance women’s political participation (WPP) specifically.
- Make specific reference to bodily integrity and autonomy, and a life free from violence.
- Ensure that there is no contradiction between the Constitution and customary law.
- Outlaw any remaining discriminatory legal provisions and practices, for example in relation to property, inheritance, and land tenure.
- Establish a strong National Gender Machinery.
HOW THE SUBMISSION RESPONDS TO THE TERMS OF REFERENCE
His Excellency, the President of Botswana Dr. Mokgweetsi Eric Keabetswe Masisi appointed the 19-member Constitutional Review Commission chaired by former Chief Justice Maruping Dibotelo in December 2021. Women comprise 32% of the Commissioners, and four-fifths (80%) of the secretariat, led by Ms. Pearl N. Ramokoka. The Commission has until September 2022 to perform five functions. We state the relevance of this submission to each of these functions (in italics) after the function:
(a) Ascertain from the people of Botswana, their views on the operation of the Constitution and, in particular, the strengths and weaknesses of the Constitution: This submission has the support of political parties and Women’s Rights Organisations (see Annex A). It points out several weaknesses in the current Constitution, as well as opportunities for Botswana to take its rightful place among progressive neighbours and nations through strengthened Constitutional provisions for gender equality.
(b) Assess the adequacy of the Constitution, in particular by:
- Asserting Botswana’s identity, principles, aspirations, and values: Gender equality is intrinsic to these values.
- Promoting and protecting people’s rights: Although women’s rights are implicit in “people’s rights”, this lobby argues that women’s rights should be explicit.
- Promoting equality: Gender equality is central to promoting equality. Constitutions – and their effective implementation- play a key role in delivering substantive equality.
- Promoting national unity and democracy: No country can claim to have attained democracy or national unity when half the population is excluded. A well-designed, gender-responsive constitution would enable women to enjoy full and equal citizenship and participate in political decision-making and public life on an equal footing with men.
(c) Articulate the concerns of the people of Botswana as regards the amendments that may be required for a review of the Constitution: The people of Botswana include women, men, boys, and girls. All their voices need to be heard.
(d) Conduct inquiries and obtain information from sources that the Commission considers relevant in the execution of its mandate: Women comprise more than half the population. They constitute the largest single interest group in these consultations. Their concerns regarding amendments are thus of primary importance.
(e) Make any recommendations on the review or amendment of the Constitution, on the basis of paragraphs (a) to (d) above and any other material considerations. We submit that the issues raised here constitute a compelling case for the review of the Constitution.
CONTEXT
Since independence in 1966, Botswana has made relative strides toward achieving gender equality. There is, however, a growing consensus that the country needs to accelerate a transformative agenda of change toward the realization of women’s rights. The conclusions of the latest national report on progress and challenges in the implementation of the Beijing Platform for Action, highlight the top five challenges: The 2015 Gender and Development Policy mentions the priority areas of concern as key challenges.
- The low representation of women in politics;
- High incidences of HIV among women, especially among young women and adolescent girls; poor attainment of Sexual and Reproductive Health and Rights (SRHR)
- High incidence of GBV;
- Contradictions between codified law and customary laws, religious practices, institutional and social, and cultural challenges prohibiting access to justice
- Limited funding and institutional barriers for gender equality and women’s empowerment programs.
Marginalization of the girl child.
Gender institutional structures in the Public, Civil Society, and Private sectors are relatively weak due to limited financial and human resources. Partnership and collaboration arrangements between these structures are further constrained as the institutional arrangements are not clearly defined and entrenched in the system. Further, gender-responsive budgeting and planning which is crucial to achieving the goal of gender equality and empowerment of women at international, regional, and national levels, is inadequate.
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is an international human rights treaty on women’s rights adopted by the United Nations General Assembly in 1979 that entered into force in 1981. Botswana (1996) is one of 189 countries around the world that have ratified the Convention. Botswana is also a signatory to the Sustainable Development Goals, including Goal 5 – Gender Equality – with a target date of 2030. The SADC Protocol on Gender and Development as updated in 2016 is aligned with the SDGs. Botswana acceded to the SADC Protocol on Gender and Development in May 2017. As yet Botswana has neither signed nor ratified the African Union Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol).
The CEDAW Committee has made several recommendations to Botswana to advance the elimination of discrimination against women and to accelerate the fulfillment of Botswana’s international commitments, ensuing from the discussion of the country’s latest CEDAW report. Botswana noted only 8 out of 26 recommendations (see Annex B). The accepted recommendations cover a wide number of issues, including improved legal and policy framework, adequate resourcing, strengthened measures for the economic empowerment of women, their improved access to health and education, and all fronts in the combat against GBV (prevention, support services, case handling, protection, prosecution, etc.).
Botswana noted all 15 recommendations received on the Rights of LGBTI persons. These include non-discrimination based on sexual orientation and gender identity in Botswana’s legal framework, policies, and programs, decriminalizing same-sex activities among consenting adults, awareness-raising on the human rights of LGBTI persons, and working with civil society (see Annex B). In the 2021 UPR Report, Botswana noted specific recommendations (see Annex B) on women's and girls’ rights from fellow UN states.
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A review of the Constitution would provide the opportunity for Botswana to domesticate all its international commitments; respond to recommendations that have been made and take its rightful place as a SADC, African and global leader in human rights, especially women’s rights. |
EQUALITY AND NON-DISCRIMINATION
Equality and non-discrimination are core international human rights standards and foundational building blocks for every constitution. CEDAW affirms the principle of equality between women and men throughout its provisions.
Most constitutions provide basic protections for formal equality (i.e., equality before the law, and equal protection of the law). Nevertheless, formal equality does not take into account the historic discrimination and inequality that women have and continue to experience. Constitutions should include gender-sensitive language that promotes substantive equality (i.e., equal benefit or results, equal opportunities, equal access, equality in practice) to recognize how patriarchy, power dynamics, and the different lived experiences of individuals and groups shape their ability to ultimately achieve equality. Beyond basic prohibitions, provisions should include (i) definitions that include both direct and indirect discrimination; (ii) recognition of multiple forms of discrimination; (iii) application of prohibitions to both private and public persons/ institutions, and (iv) a clear complaints process with remedies.
Article 14 of the Botswana Constitution embodies the general principles of equality before the law and equal protection of laws. Article 15(1) and (2) prohibits the state from discriminating against any citizen only on the basis of any one or more of the aspects such as race, tribe, place of origin, political opinions, color, creed, or sex.
The definition in the Constitution of ‘discriminatory’ is narrow thereby narrowing the scope of the protection. Equality is formal but not substantive. The protection is limited to discriminatory laws and does not equate to a prohibition on discriminatory behavior or practices in society more broadly.
The Constitution contains several exceptions to the prohibition of discriminatory laws. These exceptions include laws making provisions for “adoption, marriage divorce, burial, devolution of property on death or other matters of personal law.” These exceptions authorize discriminatory laws in these areas of law and contribute significantly to the inequality between men and women in Botswana.
Because the protection against discrimination is contained in the Constitution and the only available remedy for breach of the Constitution is through litigation, the burden falls on the person alleging discriminatory laws (whether on the face of the law or the effect of the law) to bring a Constitutional claim at their own cost.
In 2019, while reviewing Botswana’s progress in realizing its commitments to women’s human rights, the CEDAW Committee’s report (CEDAW/C/BWA/CO/4) called for the realization of de jure (legal) and de facto (substantive) gender equality, per the Convention. The CEDAW Committee recommended that the country: “review laws in order to stop violations of women’s rights in the areas of adoption, marriage, divorce, burial and devolution of property on death and other personal law matters” and
“eliminate normative exceptions and practices contrary to the principle of non-discrimination which are not in line with international human rights treaties.” The Committee called on Botswana to include in the Constitution or other appropriate legislation, without delay, a definition of discrimination against women, covering all prohibited grounds of discrimination and encompassing both direct and indirect discrimination, in line with article 1 of the Convention.
Several Constitutions and laws globally now provide for formal and substantive equality. The Federal Republic of Germany provides that “Men and women shall have equal rights. The State shall promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist.” The Constitution of Ecuador recognizes “the right to formal equality, material equality, and non-discrimination.” Zimbabwe, South Africa, and Namibian Constitutions are other examples of SADC that provide formal and substantive equality.
Grounds for non-discrimination in Constitutions include sex; parentage; race; language; homeland and origin; faith, religious or political opinions; disability; color, ethnic or social origin; genetic features; language; political or any other opinion; membership of a national minority; property; birth; age or other personal or social circumstance; gender; pregnancy; marital status; sexual orientation; conscience; belief; culture, language, and birth.
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Recommendations
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STANDALONE PROVISIONS ON WOMEN’S RIGHTS
Standalone provisions on women’s rights extend beyond general principles of equality and non-discrimination by naming rights and freedoms for women explicitly. Such clauses recognize that women require additional protections in specific areas to achieve substantive equality. These are entry points for the domestication of international conventions and standards and regional frameworks on gender and human rights, notably the CEDAW, the SADC Protocol on Gender and Development, and the SDGs. They also serve as legal and policy mechanisms to hold the State accountable.
Botswana’s Constitution has no specific provisions for the protection and/ or promotion of women’s rights. Indeed, Botswana has a dual legal system in which customary and statutory law are both applicable (they co-exist and overlap and sometimes come into conflict). The Customary Law Act provides that customary law is valid only to the extent to which it “is not incompatible with the provisions of any written law or contrary to morality, humanity or natural justice”. Some elements of customary law are non-compliant with CEDAW and other human rights instruments mentioned earlier.
Section 88 of the Constitution states that the National Assembly cannot proceed with any Bill that would affect customary law unless a copy of the Bill has been referred to the Ntlo ya Dikgosi after it has been introduced in the National Assembly, and 30 days allowed for a response. CEDAW specifically recommends the repeal of Section 15 (4) of the Constitution which ensures the operation of the customary justice system. So far, Botswana has “noted,” the UPR recommendation that the country “adopt measures based on the principle of gender equality that protect women’s rights and safety and punish any discriminatory or harmful practice against them.”
There are now several examples of African Constitutions that provide explicitly for women’s rights. For example, the Constitution of Egypt states that “the State shall ensure the achievement of equality between women and men in all civil, political, economic, social, and cultural rights in accordance with the provisions of this Constitution.” The Constitution of Malawi states that “Women have the right to full and equal protection by the law, and have the right to not be discriminated against on the basis of their gender or marital status.”
Several African Constitutions now seek to ensure that dual legal systems do not undermine women’s rights. The Constitution of Zimbabwe provides that: “All laws, customs, traditions and cultural practices that infringe the rights of women conferred by this Constitution are void to the extent of the infringement.” The Constitution of Malawi states: “Any law that discriminates against women on the basis of gender or marital status shall be invalid and legislation shall be passed to eliminate customs and practices that discriminate against women.” The Constitution of Ethiopia states: “The State shall enforce the right of women to eliminate the influences of harmful customs. Laws, customs, and practices that oppress or cause bodily or mental harm to women are prohibited.”
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Recommendations:
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POLITICAL PARTICIPATION
Many Constitutions employ affirmative action provisions to address historical and widespread discrimination against women and to promote progress toward substantive gender equality. According to the UN Women’s Constitution Database, there are currently 99 countries with broad affirmative action provisions in their Constitutions. Twenty-eight Constitutions include specific quotas for women’s political participation.
In South Africa, the Constitution provides that “legislative and other measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination may be taken.” The Constitution of Ethiopia provides for “affirmative measures” for women to “enable them to compete and participate on the basis of equality with men in political, social and economic life as well as in public and private institutions.” The Zimbabwe Constitution goes further, requiring that:
“[T]he State must take all measures, including legislative measures, needed to ensure that (i) both genders are equally represented in all institutions and agencies of government at every level; and (ii) women constitute at least half the membership of all Commissions and other elective and appointed governmental bodies established by or under this Constitution or any Act of Parliament.”
Temporary Special Measures (TSMs) are defined in the CEDAW Committee’s General Recommendation five as “positive action, preferential treatment or quota systems to advance women’s integration into education, into the economy, politics, and employment.” Temporary special measures are concrete actions aimed at dismantling obstacles and positively promoting substantive gender equality, including advancing the equal participation of women in public and private institutions, thereby advancing progress on Sustainable Development Goal targets 5.5 and 16.7. Consideration of temporary special measures is a legal obligation for any state that has ratified or acceded to the CEDAW.
TSMs recognize that guaranteeing formal equality is not sufficient to achieve women’s substantive equality with men. TSMs are a crucial short-term strategy to overcome the effect of historical discrimination and immediately accelerate the achievement of substantive equality for women. Likewise, affirmative action and quotas are measures to enhance access to equal opportunities for women and girls.
The CEDAW makes clear that TSMs do not constitute discrimination against men. Article 4 of CEDAW states that once equality is achieved TSMs will no longer be needed; hence the term ‘temporary’. TSMs can be broad (e.g., creating a general State obligation to take action in support of women’s equality) or very specific (e.g. providing the exact number of seats for women in parliament). Several countries now use TSMs provisions, such as quotas or other similar mechanisms, to bolster women’s political rights and participation in public life and institutions. The measure is most commonly used to increase women’s representation in national-level parliaments, through the use of:
- Candidate quotas: a minimum percentage of women candidates from all parties;
- Reserved seat quotas: a certain number of parliamentary seats are reserved for women and;
- A maximum level of representation for either gender (e.g., neither gender can occupy more than 60 percent of seats).
Quotas can be applied in any one of the three most common electoral systems: First Past the Post (FPTP), Proportional Representation (PR), or Mixed Member Proportional Representation (MMPR). The most effective combination is candidate quotas in a PR or list system, especially when this is based on a “zebra” style list of one woman, and one man. In this case, regardless of what proportion of seats a party wins, women will constitute half of those who win. In several Southern African countries with a PR system, such as South Africa, Namibia, and Mozambique, ruling parties have adopted voluntary quotas that have led to a substantial increase in women’s representation. This is good for party buy-in. The downside is that if the dominant party loses support, the proportion of women declines accordingly. Legislated quotas have the advantage of ensuring that all parties have to comply.
Candidate quotas in the FPTP system have the least chance of success, as there is no guarantee that women will win, even if they are fielded in equal numbers. Reserved seats for women in the FPTP are the most controversial of TSMs, as these deny men the right to contest elections in the constituencies reserved for women only. Reserved PR seats for women only are used in several countries (e.g. Zimbabwe, Tanzania, and Lesotho at the local level) to boost the representation of women, over and above the FPTP seats that are openly contested. Women who come into office through reserved PR seats in a predominantly FPTP system are often viewed as “second class” by those who contest the FPTP seats.
The Botswana Constitution (Ss63) provides for an FPTP electoral system and four nominated MPs as well as the Ntlo ya Dikgosi (chiefs) Ss 77-82. It does not provide for specific affirmative action for women’s equal participation in all areas, nor in political decision-making levels. However, Sec 15 provides that,
(e) whereby persons of any such description as is mentioned in subsection (3) of this section may be subjected to any disability or restriction or may be accorded any privilege or advantage which, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is reasonably justifiable in a democratic society.
Some political parties claim to have voluntary quotas, but none have observed these. Women constitute 11% of MPs in Botswana and 19% of councilors. These figures have either remained constant or declined over the last three elections at the very moment that Botswana has committed to gender parity in all areas of decision-making. Evidence from the SADC region and globally is clear. Women’s representation in political decision-making is highest in countries with a) either a proportional representation or a mixed system and b) one in which there are TSMs – constitutional, legislated, and or voluntary party quotas.
CEDAW, in its 2019 response to Botswana’s report recommends that the country should
“Ensure representation of women at all decision-making levels, through:
(a) The introduction of temporary special measures;
(b) Awareness-raising campaigns for politicians, community and religious leaders, the media, and the general public on the importance of having women participate in political life and occupy decision-making positions;
(c) Capacity-building programs for women wishing to enter political life and equal media visibility of women and men who are candidates or elected representatives, and specific funds for the election campaigns of women candidates.”
There are several examples of Constitutions that provide specific benchmarks for elected and appointed bodies. The Constitution of Kenya (2010) states that “In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender’ The weakness is that in Kenya this has never been translated into law, as there is no implementation mechanism, and no political will to see it materialize despite court judgments guiding the same. However, activists have used the Constitution to challenge the low representation of women in court. The other weakness is that the Constitution sets a minimum standard, without prescribing how it is to be achieved.
In Zimbabwe, the Constitution states that:
“The National Assembly (also known as the House of Assembly) shall consist of “an additional sixty women members, six from each of the provinces into which Zimbabwe is divided, elected through a system of proportional representation based on the votes cast for candidates representing political parties in a general election for constituency members in the provinces.”
The Constitution further requires senators to be elected under a “party-list system of proportional representation . . . in which male and female candidates are listed alternately, every list being headed by a female candidate.” In appointing Ministers and Deputy Ministers, the Constitution states that the President shall “be guided by considerations of regional and gender balance”.
The Constitution of Rwanda commits to “building a state governed by the rule of law, a pluralistic democratic government, equality of all Rwandans and between men and women which is affirmed by women occupying at least thirty percent (30%) of positions in decision-making organs.” It further states that “the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.” The Constitution goes on to spell out how this will be achieved in PR, FPTP, and especially elected seats.
In Botswana, there is already a lively debate on electoral systems. While the FPTP system is strong on accountability, it is weak on inclusion. The reverse applies in the case of the PR system. There is a strong case to be made for the current system of four MPs appointed by the President being allocated on a PR basis as this is more democratic. This would create a mixed system – the direction in which many countries are heading. With regard to TSMs, Botswana can benefit from the lessons learned in other countries. Rather than reserve all PR seats for women which may result in women being regarded as a token, these seats can be distributed equally between women and men based on a legislated “zebra” quota.”
A 50% candidate quota can also apply to the FPTP seats. While there is no guarantee that women will win if all parties field 50% women candidates, there is a strong possibility that over time, women’s representation will increase in these seats as well. Another critical point is that it is one thing to have quota provisions but the devil is in the detail of how it will work in the political parties, and in practice. The methodology is key and should be determined beforehand as leaving it open often encourages distortions and may fail to achieve the intended result.
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Recommendations
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CITIZENSHIP
Citizenship is a basic precondition for gender equality. Historically, women’s citizenship rights have been defined largely by their relationships with men (i.e., granted through patrilineal relationships or marriage). This can have disastrous effects, such as rendering women Stateless when widowed or divorced. As such, recent trends have sought to promote women’s equal and independent citizenship rights, including a woman’s right to retain citizenship upon divorce as well as the ability to transfer citizenship to her spouse and children.
Article 9 of CEDAW requires that women have equal rights with men to acquire, change or retain their nationality. Equal citizenship rights are necessary to demonstrate that the State does not privilege men above women.
The Botswana Citizenship Act has, over time, undergone various amendments to bring it in line with gender equality requirements. Former High Court Judge and Minister Unity Dow successfully challenged the legality of the Citizenship Act concerning a foreign man married to a Motswana woman and the right of their children to citizenship. The recent case of Sithabile Pauline Mathe vs the Attorney General will pave the way for dual citizenship in Botswana.
However, the Constitution itself contains discriminatory clauses. For example, to be elected President of Botswana, one must be a citizen by birth or descent; attained the age of 30 years, and be qualified to be elected as a Member of the National Assembly. The Constitution goes on to define “citizen by birth” to include only those persons who became citizens of Botswana before the amendment of the law relating to citizenship by the Citizenship Act (Cap. 01:01). Only persons whose fathers were citizens of Botswana, born outside Botswana, can be regarded as citizens by descent. Section 33 (2) (b) contradicts Sections 3 and 15 of the Constitution in that children born to Batswana women outside of the country when this law was in force will not be allowed to campaign for the presidency as they will not be regarded as citizens of descent.
Missing in the Botswana Constitution is a straightforward statement on the equal right of women and men, their children and spouses to citizenship, as is the trend in more modern Constitutions. For example, the Constitution of Malawi states that women have the right to full and equal protection by the law, and have the right not to be discriminated against on the basis of their gender or marital status. This includes the right “to acquire and retain citizenship and nationality.”
The Constitution of the Philippines defines the following as citizens: citizens at the time of the adoption of the Constitution; those whose fathers or mothers are citizens of the Philippines; those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority and those who naturalized in accordance with the law.
The Constitution of Barbados has a section on “Equal citizenship rights through parentage”. Citizens are defined as persons ordinarily resident in Barbados throughout the period of ten years (or such longer period as may be prescribed) immediately preceding that person’s application; (b) a person who has been married to a citizen of Barbados, and has cohabited with that citizen, for such period as may be prescribed immediately preceding that person’s application. The Constitution guarantees equal citizenship through marriage
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Recommendations The Constitution should state unequivocally the right to:
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PROTECTION FROM VIOLENCE
Despite the prevalence of GBV across the globe, most Constitutions do not specifically mention GBV or domestic violence. Botswana is consistently identified as a country with high levels of GBV. The CEDAW recommendations to Botswana include a range of legislative and policy measures on GBV. These include the effective implementation, resourcing, and coordination of the national strategy to end GBV; the development of a law on GBV, and the revision of the Penal Code (2005) to explicitly criminalize marital rape. CEDAW also recommends strengthening the judicial system for timely, gender-sensitive, and non-discriminatory handling of GBV cases, and the establishment of State-owned shelters and strengthening NGO-run ones.
On GBV trafficking in women and girls, CEDAW recommends the amendment of section 9 of the Anti-Human Trafficking Act, to remove fines as a possible sentence for the crime of trafficking in persons (TIP); the effective implementation of the national action plan on TIP and presentation of its results. CEDAW calls for the strengthening of existing shelters for victims and improved access to protection services.
With regard to women in prostitution, CEDAW calls for access to health services, combating stigmatization and social ostracism, and measures to reduce the disproportionately high prevalence of HIV/AIDS among them, including migrant women in prostitution. The committee calls on the government to offer assistance, rehabilitation, and reintegration programs for women and girls who are exploited in prostitution, creating links to empowerment programs and poverty reduction programs for women who wish to leave prostitution.
A feature of the most recent Constitutions is that they specifically mention GBV and the measures required to address this gross violation of women’s rights. For example, the Zimbabwe Constitution declares that the “State and all institutions and agencies of government at every level must protect and foster the institution of the family and in particular must endeavor, within the limits of the resources available to them, to adopt measures for . . . the prevention of domestic violence.” The Constitution further states that “[e]very person has the right to bodily and psychological integrity, which includes the right . . . (a) to freedom from all forms of violence from public or private sources.”
The Constitution of Egypt protects women against “all forms of violence”. It further commits to “ensuring and enabling women to strike a balance between family duties and work requirements.” The State is required to “provide care to and protection of motherhood and childhood, female heads of families, and elderly and neediest women.” For Botswana, the Gender and Development Policy of 2015 and the National GBV Strategy and Plan of Action (2016 – 2021) indicates specific measures on GBV. The Domestic Violence Act and the Children’s Act protect the human rights of women and girls. The Sexual Offenders Act is another Act that protects the Human Rights of women and girls.
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Recommendations
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SEXUAL AND REPRODUCTIVE HEALTH AND RIGHTS
More recent constitutions refer to health, bodily integrity, and Sexual and Reproductive Health and Rights (SRHR). CEDAW highlights SRHR in its recommendation to Botswana. Specifically, CEDAW recommends that Botswana ensure women’s health rights, through the:
(a)reduction of maternal and child mortality, including through incentives for staff retention in healthcare services, and mobile health posts in communities;
(b) Amendment of section 160 of the Penal Code to decriminalize abortion, beyond cases of rape, incest, threats to the life or health of the pregnant woman or severe fetal impairment, and access to high-quality and confidential abortion and post-abortion care;
(c) training for health professionals and midwives on gender-sensitive approaches to GBV victims, and their referral to other services; and
(d) continuation of awareness-raising for communities, women, and girls, of available contraceptive methods and accessible sexual and reproductive health services, including cervical cancer screening.
Globally, two Southern African Constitutions stand out in their explicit provisions on SRHR. The Constitution of Zimbabwe provides that “[e]very citizen and permanent resident of Zimbabwe has the right to have access to basic health-care services, including reproductive health-care services” The Constitution further requires the State to “take all practical measures to ensure the provision of basic, accessible and adequate health services throughout Zimbabwe.” However, the 2013 Constitution also states that an “Act of Parliament must protect the lives of unborn children and that Act must provide that pregnancy may be terminated only in accordance with the law.”
Article 12 of the South African Constitution has a section titled “Freedom and security of the person”. This includes the right, among others, to be free from “all forms of violence from either public or private sources.” The Article further enshrines “the right to bodily and psychological integrity,” which includes the right of every person
(a) to make decisions concerning reproduction
(b) to security and control over their body; and
(c) not to be subjected to medical or scientific experiments without their informed consent.
The first of these provisions paved the way for the adoption of the Choice of Termination of Pregnancy Act 1996, giving women access to safe abortion within the first trimester of pregnancy.
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Recommendations
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MARRIAGE AND FAMILY LIFE
Recognition of equality in marriage is essential for women’s independence and ability to make decisions freely about entering and exiting partnerships, reproductive choices, employment, inheritance, property/ land ownership, and much more. Without those rights, women, and girls can be subject to discriminatory practices, like early, child, and forced marriage, and polygamy.
Provisions that allow women to marry at a younger age than men can also have implications for child marriage. In some contexts, after divorce, women are denied equal rights to property accumulated during the marriage. Women can also lose custody of their children, which is particularly the case for children born out of wedlock. Spousal support requirements can also discriminate against women where non-financial contributions (e.g., childrearing, caregiving) are not given the same weight as financial contributions. Under such heavy burdens, women may become trapped in violent relationships with life-threatening implications.
CEDAW General Recommendation 21 also calls for women to share equal rights and responsibilities with men in informal marriages (e.g., customary, religious, and common law) and de facto unions (i.e., common law marriage). These relationships should fall under equal marriage constitutional guarantees and not be subject to limitations. Provisions that guarantee equality in marriage and family relations should:
- Seek to protect women from forced marriage and divorce;
- enforce the same minimum legal marriage age for men and women;
- Ensure that property can be divided equally at the dissolution of the marriage;
- Support equal guardianship of children and
- Guarantee equal decision-making power over communal property.
In Botswana, customary, religious, and civil marriages can be registered under the Marriages Act. However, there is no legal recognition of de facto unions, which are reportedly becoming more common. Widows, single and divorced women, or women in cohabitation unions are often discriminated against in legal frameworks and cultural practices related to marriage, family life, inheritance, and access and control of property and assets such as land, houses, and goods.
CEDAW recommendations to Botswana include amending the Abolition of Marital Power Act, the Deeds Registry Act, the Matrimonial Causes Act, and the Marriage Act to remove, the provision that allows an adoptive father to legally marry his adopted daughter once she reaches the legal age of marriage, from the Adoption of Children Act. CEDAW notes the need to “step up efforts to change stereotypes and harmful practices” including child marriage, and deep-rooted stereotypes on the roles and responsibilities of men and women within family and community.”
CEDAW says this calls for a comprehensive strategy and the effective implementation of gender policy; engaging relevant actors, including tribal chiefs, religious and community leaders, government officials, and parliamentarians; targeted awareness-raising on the harmful effects of child marriage on families and communities; (d) monitoring, reviewing and assessing the impact of measures to eliminate discriminatory gender stereotypes and harmful practices.
A minority of Constitutions guarantee equal rights within or while entering and exiting a marriage. As such, there is a need to advance provisions that recognize the equality of spouses during all phases of marriage. This includes, for example, protecting women from forced marriage and divorce, enforcing the same minimum legal marriage age for men and women, and guaranteeing equal decision-making power over communal property.
In Ethiopia, the Constitution states that “women have equal rights with men in marriage as prescribed by this Constitution.” The Zimbabwe Constitution says the State must “take appropriate measures to ensure that no marriage is entered into without the free and full consent of the intending spouses.” Children may not be “pledged in marriage.” Furthermore, there must be “equality of rights and obligations of spouses during the marriage and at its dissolution; and (d) in the event of dissolution of a marriage, whether through death or divorce, provision is made for the necessary protection of any children and spouses.” The Constitution of Malawi states that, “no person over the age of eighteen years shall be prevented from entering into marriage.”
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ECONOMIC PARTICIPATION, PROPERTY, INHERITANCE, AND LAND TENURE
The right to purchase, own, inherit, and dispose of property and land both within and outside marriage can have serious implications for women, particularly in rural areas where control and ownership are critical to livelihoods, food security, and physical security. Because legal regimes for inheritance and property ownership can greatly vary, particularly in plural legal systems, strong constitutional guarantees are needed to protect women’s rights.
CEDAW recognizes that women should have “equal rights to conclude contracts and to administer property” and in marriage, both spouses should have the same rights “in respect of the ownership, acquisition, management, administration, enjoyment, and disposition of property” (Articles 15-16). Because legal regimes for inheritance and property ownership can greatly vary, particularly in plural legal systems, strong Constitutional guarantees are needed to protect women’s rights. Discriminatory inheritance laws and practices can lead to women receiving a smaller share as compared to male relatives. Upon death or dissolution of marriage, women can be subject to discriminatory laws and practices that limit their access and ownership of marital property.
Discriminatory inheritance laws and practices can lead to women receiving a smaller share as compared to male relatives. Upon death or dissolution of marriage, women can be subject to discriminatory laws and practices that limit their access and ownership of marital property.
While rules governing inheritance are rarely included in Constitutions, a growing number of constitutions, particularly in Africa are integrating women’s rights related to land and property ownership. Constitutional guarantees should include women’s equal right to inherit, equal ownership and usage of land and property, as well as prohibitions on customary or religious practices related to property, inheritance, and land that discriminate against women.
For example, the Constitution of Malawi includes the right “to be accorded the same rights as men in civil law. This includes the equal capacity to enter into contracts; to acquire and maintain rights in property; independently or in association with others, regardless of their marital status; to acquire and retain custody, guardianship, and care of children, and to have an equal right in the making of decisions that affect their upbringing; and (iv) to acquire and retain citizenship and nationality.”
On the dissolution of marriage, howsoever entered into, women have equal rights to “a fair disposition of property that is held jointly with a husband; and to fair maintenance, taking into consideration all the circumstances and, in particular, the means of the former husband and the needs of any children.” The Constitution further states that “any law that discriminates against women on the basis of gender or marital status shall be invalid and legislation shall be passed to eliminate customs and practices that discriminate against women.” These include “deprivation of property, including property obtained by inheritance.”
Article 35 of the Malawi Constitution includes a host of progressive provisions to promote women’s equal economic participation. These include:
- Women’s right to maternity leave with full pay. The duration of maternity leave shall be determined by law considering the nature of the work, the health of the mother, and the well-being of the child and family.
- Maternity leave may include prenatal leave with full pay.
- Women have the right to the full consultation in the formulation of national development policies, the designing and execution of projects, and particularly in the case of projects affecting the interests of women.
- Women have the right to acquire, administer, control, use, and transfer property. In particular, they have equal rights with men concerning the use, transfer, administration, and control of the land.
- Women and men shall also enjoy equal treatment in the inheritance of property.
Women shall have a right to equality in employment, promotion, pay, and the transfer of pension entitlements.
The Constitution of the Republic of Kenya (2010) states: “land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable.” Guiding principles include “elimination of gender discrimination in law, customs and practices related to land and property in land; Extends land rights to apply to customs and practices.”
The Constitution of Ethiopia states that “Women have the right to acquire, administer, control, use and transfer property. In particular, they have equal rights with men with respect to the use, transfer, administration, and control of the land. They shall also enjoy equal treatment in the inheritance of property”
The Constitution of Zimbabwe establishes the right of every person “in any part of Zimbabwe, to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property.” Article 17 requires “all institutions and agencies of government at every level” to take “practical measures to ensure that women have access to resources, including land, on the basis of equality with men.” According to article 289(c), “the allocation and distribution of agricultural land must be fair and equitable, having regard to gender balance and diverse community interests.” Article 297 requires the Zimbabwe Land Commission to make recommendations to the government regarding the “elimination of all forms of unfair discrimination, particularly gender discrimination.” In accordance with article 296, the Land Commission itself must “reflect the diversity of Zimbabwe’s population, in particular its . . . gender balance.”
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GENDER EQUALITY MACHINERY
Gender equality machinery is independent institution that play a key role in supporting the implementation of Constitutional guarantees and promoting continued gender mainstreaming across all levels and aspects of the government. A Constitutional mandate provides gender equality machinery status and gravitas. It will further assist with the domestication of International and Regional Gender Protocols and conventions that Botswana has signed and is committed to implementing, promoting, and advocating for gender equality and the empowerment of women and girls. This helps to ensure that such institutions cannot be easily dismantled, and are budgeted for.
To date, only a few countries have constitutionally established national gender equality institutions. Gender equality types of machinery can be stand-alone institutions with an exclusive gender mandate (e.g. the South African and Zimbabwe Commissions on Gender Equality) or they can be combined with other human rights-related mandates (e.g., Kenya’s National Human Rights and Equality Commission, and Rwanda’s Human Rights Commission that has a constitutionally specified gender mandate).
There is no provision in the Botswana Constitution for a statutory independent commission/ body to promote gender equality or human rights. Botswana has a Gender advisory commission on women with a secretariat in the department of gender affairs. This department has moved from the Ministry of Home Affairs to its current location as part of the Ministry of Youth, Gender, Sports, and Culture. The CEDAW Committee recommended that Botswana
“Continue to strengthen mechanisms and capacity of institutions dealing with women’s human rights”, including the national machinery for the advancement of women; gender committees at the district level, and; the establishment, of an independent national human rights institution, with a mandate to promote the human rights of all people including women’s and girls’ human rights.”
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DOMESTICATION AND IMPLEMENTATION OF INTERNATIONAL COMMITMENTS
An important and certain way of ensuring that international law, including treaties, is incorporated into national legal frameworks (both in civil and common law countries) is to include a provision in the constitution that clearly declares this to be the case.
This enables international treaties to be directly applied in the courts – to enforce rights where there is no domestic law, and to assist in interpreting existing law in line with international standards. Domestication is also important in shaping national policy and guiding the enactment of new laws and the amendment of existing laws to accord with the gender equality standards in CEDAW and other treaties.
The CEDAW recommendation to Botswana is to “take the necessary steps to incorporate into domestic law those international human rights conventions that Botswana has ratified” and “include provisions of international human rights treaties ratified by Botswana in national legislation, to ensure their applicability in courts and administrative organs. Botswana has “noted” but not “accepted” these recommendations.
Several countries now integrate the domestication of international instruments into their Constitutions. The Constitution of the Republic of Burundi, 2004 Article 19, states that the “rights and duties” in the Universal Declaration of Human Rights, the International Covenants on Human Rights, the African Charter on Human and Peoples’ Rights, CEDAW, and the Convention on the Rights of the Child are an integral part of the Constitution of the Republic of Burundi.
The Constitution of the Republic of Costa Rica, 1949 Article 7 states that “Public treaties, international agreements, and concordats duly approved by the Legislative Assembly shall have a higher authority than the laws upon their enactment or from the day that they designate.” The Constitution of Colombia, 1991 Article 93 states that “International treaties and conventions ratified by the Congress that recognize human rights …have prevalence in the internal order.”
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