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Customary Law Inheritance: Lessons Learnt from Ramantele v. Mmusi and others

Document Cited in Related
Vincent
Author
Date01 November 2016
Pages582-603
DOI10.3366/ajicl.2016.0174
Published date01 November 2016
INTRODUCTION

Poverty, narrowly defined is the lack of physical, human and social capital to meet basic needs.1 In Botswana, few women own land, which is a strong indicator of physical capital, and those who are owners only have secondary rights.2 This is despite recent land reforms3 and improved women's land rights.4 As in many other countries, women face the burden of poverty and the proportion of female headed households living in poverty is higher than that of male headed households.5 Predominantly a rural country with only 22 per cent of its population residing in urban areas, among other problems women in Botswana have a lower employment rate to population and less income than men do.6 Hence women face an uphill battle in articulating their claims to equality and in ensuring that these claims are legally enforceable.

Jurisprudence in Botswana regarding equality and women's rights has for many years been dominated by the well-known case of Attorney General of Botswana v. Unity Dow.7 In the Dow matter, the respondent challenged section 4 of the Citizenship Act,8 which precluded her two children from becoming citizens of Botswana because their father was an American citizen and this prevented her from passing on her citizenship. The High Court and later the Court of Appeal9 held that section 15 of the Constitution of Botswana must be interpreted to include sex as a ground of discrimination. This is because the makers of the Constitution would not have intended that equal treatment of males and females be exempted from the prohibition of discriminatory laws and discriminatory treatment found in subsections 15(1) or (2).10 Important for this discussion is that the Court of Appeal rejected the appellant's argument that ‘sex’ had been intentionally omitted from the definition of discrimination in section 15(3) of the Constitution. The Court dismissed the appellant's contention that the absence of ‘sex’ as a grounds of discrimination was so as to accommodate, subject to the fundamental rights protected by section 3 thereof, the patrilineal structure of Botswana society, in terms of the, among others, customary law.11

In 2012, two decades after the historic Dow judgment, the High Court of Botswana handed down another ground-breaking judgment in Mmusi & Others v. Ramantele12 that confirmed the position that any unfair discrimination on the grounds of sex is intolerable in a Constitutional era. The Court of Appeal (herein referred to as the Appeal Court)13 later agreed with this. This article examines the relevance of these two decisions in light of women and customary law inheritance. While the decision may be particular to Botswana, this article argues that there are lessons to be learnt from this case that will be useful in any context in Africa when considering the implications of customary law inheritance practices on human rights generally and women's rights specifically. Customary law practices that deny women land rights contribute to the cycle of poverty that women in Africa face daily and closer scrutiny of court decisions is necessary to enhance justice for women.

This discussion begins with a description of customary law and its practices in relation to women in Botswana and Southern Africa in general before delving into the history of the Mmusi case. The protagonists in this case are four sisters who approached the High Court after failed efforts to prevent their nephew Moelfi Ramantele from inheriting their parents' homestead (which two of them resided on) by relying on the Ngwaketse custom. In terms of this custom, also known as ultimogeniture, the youngest son of the deceased is entitled to succeed to the property of his deceased father. The applicants sought to have the custom declared unconstitutional by relying on section 3(a) of the Constitution of Botswana which protects the fundamental rights and freedom of the individual. In order to comprehend the matter in its entirety, a succinct account of the background leading to the process in the High Court will be provided, with an additional discussion of the arguments from both parties. While the High Court found that the custom was ultra vires in terms of section 3(a) of the Constitution, the reasoning of the Appeal Court took an entirely different direction. It overturned the High Court judgment and found on the facts alone in favour of the sisters and cautioned against the unnecessary use of constitutional interpretation. A critique of the Appeal Court decision permits the extraction of four lessons that would be useful in future customary law adjudication. The origin of each lesson will be identified from the judgment with an explanation of why each is relevant to the future adjudication of customary law, not just in Botswana, but in Africa as a whole.

The first lesson focuses on the requirement that evidence of a customary law practice must be adduced in court. The Appeal Court found that the evidence in favour of the Ngwaketse custom was lacking, and the author submits that this approach in some matters is not always practical. The High Court's decision by Dingake J was heavily criticised by the Appeal Court for having unnecessarily dealt with a constitutional question and this is where the second lesson emanates from. It is derived from examining whether a constitutional question should always be asked by the courts in dealing with matters before them. The third lesson investigates the governance of customary law and asks who the customary law officers dispensing justice in these communities are, and whether or not they are in a position to make the correct decisions. This is especially important because, prior to the High Court application, the matter had been heard in three different customary courts with two of them ruling that Ngwaketse customary law must be applied, which would have left the sisters with no homestead. The events in customary courts have a great impact on litigants who often cannot afford to approach the High Court for further relief if they feel aggrieved.

The final lesson situates these issues within the sphere of culture and identity, the central argument relied on by Molefi Ramantele and the Attorney General, who were the appellants in the Appeal Court. While culture is not static and changes with the times, there is resistance to such changes because adjudication of said matters tends to be underpinned by a fear that the courts wish to interfere with a community's culture and, inadvertently, its identity. The article will conclude by providing recommendations that could be useful for courts to apply when adjudicating the relationship between customary law and modern human rights principles.

 CUSTOMARY LAW AND WOMEN'S RIGHTS: ARE THEY MUTUALLY EXCLUSIVE? An Overview

Most African legal systems are pluralistic and composed of African customary law, religious law, common or civil law and legislation.14 There is no single definition of customary law agreed upon by lawyers, jurists and anthropologists. Customary law includes the customs and traditions of a people which play a crucial role in shaping their culture.15 These traditions and customs are passed on over time from one generation to another in different contexts all over Africa. The living customary law is dynamic and constantly adapting to changing social and economic conditions. Himonga et al. argue that new customary norms are the product of the melding of local customs and practices, religious norms and social and economic imperatives (and one may add constitutional imperatives), with the result that living customary law is formed out of interactive social, economic and legal forces which give it its flexibility in content.16 However, Joireman believes that customary law is explicitly political and is best viewed as a battleground in the struggle for power within a society.17 He submits that during the colonial era, customary law provided a way for older men within traditional societies to reclaim some of the independence and control which they lost due to colonisation. They were able to use customary law to assert control over women, younger men and children – the limited realm over which they were given authority by the colonial power.18

This assertion of control still exists, with great impact on the lives of the majority of African women in the area of personal law in regard to matters such as marriage, inheritance and traditional authority.19 Though some positive aspects of customary law include the emphasis on community and duties of individuals towards communities, customary law does also contain gender discriminatory practices that impede on women's dignity. Prevalent practises regarding women include the payment of bride price (also known as lobolo20), widow's inheritance (also known as levirate21) and initiation ceremonies when a girl reaches adolescence. In relation to property rights, sub-Saharan countries' notions of culture and tradition nearly always require the transfer of power, land and property to men alone.22 In addition, the administration of customary law is done through traditional leaders called village chiefs, sub-chiefs and headmen whose positions are hereditary – passed on from father to son.23 It is a rare occurrence to find a female sub-chief or headperson, which further removes women from the processes of determining how customary law is applied to them.

Women are sometimes viewed as an addition to their tribe or clan as opposed to equals in their own right. Hence, once a woman is married she becomes part of her husband's family and falls under his guardianship. An unmarried woman remains under her father's guardianship and control, so a woman effectively always has a male head over her.24 When this male head dies, if he dies intestate – as often occurs in areas where customary law is practised – the woman is likely to get very little. She is disinherited of any land her husband or father may have owned, any houses...

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