Justice Dingake said this when handing down judgement in a case in which four Bangwaketse women were challenging the legality of a customary law that prevents female siblings from inheriting family homes."A large number of people may not be conscious of their rights. Those who are conscious may lack resources to litigate. If it so happens that they are fortune enough to approach the court and their complaint has merit, then it is the sacred duty of the courts to protect their rights," said Dingake.
The four women, Edith Mmusi, Bakhani Moima, Jane Lekoko and Mercy Ntshekisang had brought the case in 2007 against their male sibling Molefhi Ramantle. The Customary Court of Appeal and government supported this law.In the recent application in which Dingake ruled in their favour, Ramantle was cited as the First Respondent while the Customary Court of Appeal (represented by the Attorney General) (AG) was the Second Respondent.
On an argument raised by AG Attaliah Molokomme that 91 percent of Batswana being descendents of Tswana and Kalanga speaking tribes that practise Tswana and Kalanga culture, it would be absurd to expect ours to shy away from recognising such practices, Dingake found the argument unjustifiable. "It seems to me that the reason proffered by the AG cannot be a valid reason to discriminate against the applicants. In my mind, there is no legitimate government purposes to be served by the discriminatory rule; and the fact of the matter is that the rule sought to be impugned is not only irrational but amounts to an unjustifiable assault on the dignity of the applicants and or women generally," the judge said.
Molokomme further stated that Botswana society was not ready for equality, even though the customary rule is discriminatory. The AG also argued that the rule should remain.However, Dingake said it is time for Botswana judges to assume the role of the "judicial midwives" to assist in the birth of a new world struggling to be born - a world of equality between men and women as envisioned by the Botswana Constitution.
"There is an urgent need for Parliament to abolish laws that are inconsistent with Section (3) so that the right to equality ceases to be an illusion but where Parliament is slow to effect the Constitution would not hesitate to perform its constitutional duty," he said.
"In all the circumstances of this case, it seems plain to me that the Ngwaketse Customary Law rule sought to be impugned is unjustifiably discriminatory."On whether extending the rights of equality or equal protection of the law to the four women prejudices anybody the judge said he did not think so.
"It boggles my mind how the creation of an equal society (in terms of rights) can be prejudicial to anybody or to be contrary to public interest. It would be tragic to interpret the Constitution in a way as to take away or reduce rights of other human beings solely on the grounds of sex," said Dingake.
"This court believes that it is its function to treat the Constitution as a living organism and to constantly sharpen it to address contemporary challenges," said Dingake.He is of the view that it is the function of judges to keep the law alive and to make it progressive without being inhibited by those aspects of culture that are no longer relevant, to find every conceivable way of avoiding narrowness that would spell injustice.
"The right to culture although not finding expression in our constitution is an inalienable right of every person. He said where a court concludes that Batswana culture conflicts with the supreme law of the land, it must not to so pronounce," said Dingake.
He added that it would be offensive, in the extreme to find in this modern era, that such a law has a place in the country's legal system, having regard to the impressive that constitutional provisions should be interpreted generously, to serve not only this generation, but generations yet to be born, particularly recalling that the Constitution should not be interpreted in a manner that would render it a museum piece.
Commenting on the judgement, Ditswanelo the Botswana Centre for Human `Rights' publicity officer Thuso Geleitsiwe said the ruling was timely as Botswana will be appearing before the Human Rights Council in February 2013 for its second cycle of the Universal Periodic Review (UPR).
"In the first UPR review in 2008, the Human Rights Council (through Canada) had recommended that 'Botswana increase efforts to raise awareness of the precedence of constitutional law over customary laws and practices to promote gender equality'. Botswana's response was that 'Botswana does not accept the recommendation.
Customary law is not in conflict with Constitutional law'. The Human Rights Council (through Mexico) had recommended that Botswana 'adopt measures necessary for harmonising customary laws with international instruments'. Botswana had replied that it 'does not consider its customary law to be in conflict with international instruments, and therefore does not accept the recommendation," said Galetiswe.
(Sila Press Agency)