|Bringing Equality Home - Implementing the Convention on the Elimination of all Forms of Discrimination against Women (UNIFEM, 1998, 45 p.)|
|II. THE COURTS|
The Botswana Citizenship Act was passed in 1984. It was intended to bring citizenship law into conformity with Tswana customary law, and this meant that the nationality of a child born on Botswanan soil would be determined exclusively by the father's nationality (regardless of where the parents were married). For almost two decades before this law was enacted, Botswana's constitution had guaranteed that mothers could also pass their nationality on to children born into a marriage, but this part of the constitution was now repealed.
A Botswanan lawyer and activist, Unity Dow, challenged the Citizenship Act in the Botswana High Court in 1990 (Unity Dow v Attorney General). She was married to an American, and two of her three children had been born in Botswana after 1984. These two children required residence permits to stay in the country, could leave the country only on their father's passport, would not be allowed to vote, and would be denied the free university education available to citizens. Dow argued that by ordering this treatment, the Citizenship Act violated the constitution's guarantees of liberty, equal protection of the law, immunity from expulsion, and the right to be free from degrading treatment. She also made the more difficult argument that the Act was discriminatory. The constitution's protection against discrimination said nothing about discrimination on the basis of sex, although it did specifically prohibit other forms of discrimination.
The High Court found that the constitution should be interpreted as prohibiting sex discrimination: "The time that women were treated as chattels or were there to obey the whims and wishes of males is long past, and it would be offensive to modern thinking and the spirit of the Constitution to find that the Constitution was framed deliberately to permit discrimination on the grounds of sex." (Dow, at 623). The Government had not ratified CEDAW, but it had made other international commitments supporting women's human rights. The court reasoned that it was "difficult or impossible to accept" that the framers of the Botswana constitution would intentionally permit sex discrimination "whilst at the same time internationally support non-discrimination against females" (Dow, at 624). The court also cited the 1967 Declaration on the Elimination of Discrimination Against Women, the precursor to CEDAW (Botswana had participated in the adoption of the declaration, but had not yet ratified the convention).
The Government appealed this decision to Botswana's Court of Appeal, arguing that the constitution was intended to discriminate against women, in order to preserve traditional Tswana values. The Court of Appeal rejected, this argument and again referred to Botswana's international commitments to find that the constitution prohibited sex discrimination.
This decision was released in 1992, and it was not immediately clear what practical results would follow. The court had left the Government with the choice of either changing the Citizenship Act, or amending the constitution to explicitly allow sex discrimination. There was speculation in the Botswanan press that the Government would never enforce the Dow decision, as there was not a great deal of public support for reforming the nationality law. In 1993, the Government actually considered holding a referendum on changing the constitution to explicitly permit sex discrimination but abandoned the idea in the face of international and local objections. It was not until 1995, when Botswana was preparing to ratify CEDAW, that the Citizenship Act was finally amended. These changes have been maintained, and the Act is now gender-neutral, giving equal rights to men and women with respect to the citizenship of their children.