Botswana

Sections 113-118 of the Employment (Amendment) Act pertain to the rights of women to maternity leave from their employers. The amendment compels employers to pay employees on maternity leave not less than 50% of their salary, establishes the right to maternity allowance unaffected by notice of termination of contract of employment, and prohibits serving notice of termination of contract of employment during maternity leave. It establishes in Section 117 that female employees are entitled to only one maternity allowance per woman. Section 118 mandates that an employer permit a female employee for a half hour twice a day to “suckle her child or otherwise feed him herself” for “six months immediately after her return to work.”

Section 44 requires a gender-neutral interpretation of statutory language. It states that use of male-specific language includes women and the use of female-specific language includes men. Finally, section 44 notes that the terms "person" and "party" are not limited to natural persons even if accompanied by gendered language. The Interpretation Act commenced in 2013.

The full title of the Abolition of Marital Power Act 34 of 2004 is “An Act to provide for the abolition of marital power, to amend the matrimonial property law of marriages, to provide for the domicile of married women, to provide for the domicile and guardianship of minor children and to provide for matters incidental thereto.” The Act provides for equal powers in property ownership for spouses. It also gives women equal powers to assume guardianship of minor children and in determining the domicile of their children. Furthermore, it removes the common law position of the husband as head of the family. Its effect is limited to common law marriage; it has no effect on customary or religious marriages (couples may marry under customary or common law).

In 2000, the Public Service Act was amended to recognize sexual harassment. Sexual harassment is defined as “any unwanted, unsolicited or repeated sexual advance, sexually derogatory statement or sexually discriminatory remark made by an employee to another,” and it covers all offensive or objectionable remarks made in or outside the workplace that cause the recipient discomfort or humiliation or that “the recipient believes interferes with the performance of his or her job security or prospects” or that “create[s] a threatening or intimidating work environment.” The Act delineates the penalties for sexual harassment.

The Domestic Violence Act (No. 10 of 2008) seeks to provide survivors of domestic violence with protection. The Act defines domestic violence as "any controlling or abusive behaviour that harms the health or safety of the applicant." The Act empowers Courts including Customary Courts to pass an order (Section 7 of the Act prescribes orders available to applicants such as restraining orders and interim orders) that seeks to immediately protect applicants (victims); Section 9 (2) (b) (i) provides that the order shall direct a member of the Botswana Police to prohibit the respondent (the offender) from committing an act of domestic violence. The Act also outlines the jurisdiction of the courts, describes how an applicant can file an application for an order by the court, details how documents are served to respondents, and explains the nature of proceedings in a domestic violence case.

Here, in a unanimous judgment, the Court of Appeal reversed a decision by the High Court to dismiss a medical negligence claim raised by a woman who underwent a surgical procedure for the removal of her womb and experienced the leaking of urine after the procedure. Appellant had sought damages from medical negligence and lack of proper post-operative care. The Court’s holding clarifies the law on prescription and medical negligence, which are a prominent method through which women try to access the courts when their reproductive health rights are violated.

Edith Mmusi and her sisters, all over 65 years of age, brought a case against their nephew, Molefi Ramantele, who claimed to have rightfully inherited the home that was occupied by Mmusi and her sisters and tried to evict them. The sisters contested the eviction, arguing that they had paid for the home’s upkeep and expansion costs. The applicable customary law, that of the Ngwaketse tribe, dictated that the family home of a deceased individual was to be reserved to the last born male child. The rest of the property was to be divided among the children, regardless of gender. The Lower Customary Court found in favor of the nephew; the Higher Customary Court held in 2008 that the home belonged to all of the children; and the Customary Court of Appeal, to which both parties appealed, held that the home should be inherited by the nephew. The High Court noted that the issue of law being considered was whether the Ngwaketse customary law, to the extent that it denied the applicants the right to inherit the family residence intestate, "solely on the basis of their sex, violate[d] their constitutional right to equality under section 3(a) of the Constitution. In 2012, the High Court awarded the home to the sisters, ruling that the local customary laws prioritizing male inheritance were not in keeping with the promise of gender equality enshrined in the Constitution of Botswana and in international conventions such as CEDAW, thereby recognizing for the first time the right of women in Botswana to inherit property. In 2013, the Court of Appeal upheld the decision of the High Court, observing that “Constitutional values of equality before the law, and the increased leveling of the power structures with more and more women heading households and participating with men as equals in the public sphere and increasingly in the private sphere, demonstrate that there is no rational and justifiable basis for sticking to the narrow norms of days gone by when such norms go against current value systems.” This case was a landmark case that effectively ended the patriarchal inheritance system in Botswana. The High Court decision is available here.

The appellant appealed his conviction for rape in the subordinate court of the first class for the North West Magisterial District on the grounds that the evidence did not show lack of consent, and that the sexual intercourse between the appellant and the complainant was consensual. The Court upheld the conviction on the grounds that the evidence showed that the appellant used threats and coercion to force the complainant to have intercourse with two other persons, which rape. Therefore, the Court upheld the conviction. The Court also discussed proper procedures for handling criminal trials for defendants who are minors at the time of the alleged crime but over the age of majority at the time of trial, as the appellant's two co-accused were in this case.

The appellant was found guilty in magistrates court of raping a 10-year-old girl and sentenced to 10 years in prison. He appeals on the question of whether sexual intercourse with a girl of that age should be considered as rape or "defilement" because rape requires a lack of consent while the Penal Code defines defilement as carnal knowledge of anyone under the age of 16. The High Court held that, in accordance with the principle followed by the common law in South Africa incorporated by Botswana, a girl under the age of 12 is deemed incapable of consenting to intercourse and therefore intercourse with any person under the age of 12 is deemed rape.

The respondent, Ms. Unity Dow, brought a case to the High Court of Botswana asserting that sections 4 and 5 of the Citizenship Act violated her right to equal protection of the law and protection from discrimination on the basis of sex because the sections of the Citizenship Act treated children differently depending on whether they were born to citizen mothers or to citizen fathers. The respondent had one child with an American man prior to their marriage and two children after. Botswana's citizenship requirements allowed only children born outside of marriage to inherit their mother's citizenship, so the respondent's first child was a citizen of Botswana while the two born during her marriage were not. Though not the central issue of the case, the Court noted that an immediate effect of the law could be the expulsion of the husband and non-citizen children from Botswana. The Court of Appeal upheld the High Court's decision in finding that the Citizenship Act discriminated on the basis of gender under both the Botswana Constitution and the Declaration on the Elimination of Discrimination Against Women because it punishes a female citizen for marrying a non-citizen male. In addition, the Court considered similar cases in different countries in reaching its opinion. (High Court decision available at: https://www.law.cornell.edu/sites/www.law.cornell.edu/files/women-and-ju...)